Some Thoughts on the State-Created Danger Doctrine: Deshaney is Still Wrong and Castle Rock is More of the Same

18 Pages Posted: 24 Sep 2007

See all articles by Laura E. Oren

Laura E. Oren

University of Houston Law Center

Abstract

The Court has often stated as a general constitutional rule of due process law that the state has no affirmative duty to protect someone from injury at the hands of a third person. In DeShaney v. Winnebago Department of Social Services, the leading "no affirmative duty" case, however, the Court conceded two possible exceptions. The second exemption is where the state has done more than fail to act, but also has played some part in creating the dangers that the victim faced or in making him or her more vulnerable to them.

As water flows to the sea, so advocates and courts migrated to the resulting "state-created danger" theory. After an initial period in which all the circuits but one apparently embraced the doctrine, the situation looks far less hopeful now. In an update of the state-created danger cases through the first part of 2006, this article finds that the courts of appeal typically approve dismissal or summary judgment, and sometimes even overturn significant jury verdicts. The irrationalities and contradictions of the state-created danger doctrine ultimately raise questions about the validity of the original "no affirmative duty" premise.

Keywords: State-created danger doctrine, substantive due process, DeShaney v. Winnebago Department of Social Services

Suggested Citation

Oren, Laura E., Some Thoughts on the State-Created Danger Doctrine: Deshaney is Still Wrong and Castle Rock is More of the Same. Temple Political & Civil Rights Law Review, Vol. 16, No. 1, 2006; U of Houston Law Center No. 2007-A-38. Available at SSRN: https://ssrn.com/abstract=1016403

Laura E. Oren (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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