The State-Created Danger Doctrine
From Judge Don Willett’s opinion yesterday in Fisher v. Moore, joined by Chief Judge Priscilla Richman and Judge Jacques Wiener:
A disabled public-school student was sexually assaulted by another student with known violent tendencies. [The assault involved the other student forcing the disabled student to perform oral sex on him. -EV] Despite knowing of this attack, the victim’s teachers let both her and her aggressor wander the school unsupervised, and she was again assaulted by the very same student. [The opinion doesn’t indicate the details of this second sexual assault. -EV] The victim’s mother sued various school officials under 42 U.S.C. § 1983, alleging liability under the so-called “state-created danger” doctrine, an exception to the general rule that government has no duty under the Due Process Clause to protect people from privately inflicted harms. The school officials sought dismissal on qualified-immunity grounds, arguing that the state-created danger doctrine was not clearly established in this circuit when the underlying events occurred. The district court denied their motion.
But the school officials are right. This circuit has never adopted a state-created danger exception to the sweeping “no duty to protect” rule. And a never-established right cannot be a clearly established one. Nor do we think it prudent to adopt a never-recognized theory of § 1983 liability in the absence of rigorous briefing that grapples painstakingly with how such a cause of action, however widely accepted in other circuits, works in terms of its practical contours and application, details on which our sister circuits disagree. Also, beyond the lack of thorough briefing, we are reluctant to expand substantive due process doctrine given the Supreme Court’s recent forceful pronouncements signaling unease with implied rights not deeply rooted in our Nation’s history and tradition. This is especially so here, as our unbroken precedent counsels us to rule instead on a narrower ground….
The Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall … deprive any person of life, liberty, or property, without due process of law.” “The Due Process Clause … does not, as a general matter, require the government to protect its citizens from the acts of private actors.” We have recognized just one exception to this general rule: “when [a] ‘special relationship’ between the individual and the state imposes upon the state a constitutional duty to protect that individual from known threats of harm by private actors.” However, “a number of our sister circuits have adop
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