Liability for Government Dereliction: Equity and Property Rights

Abstract

The Supreme Court has held, in cases such as DeShaney v. Winnebago Department of Social Services and Town of Castle Rock v. Gonzales, that the Fourteenth Amendment does not impose on states a duty to protect individuals from harms committed by private parties. But there are exceptions; circumstances in which government’s failure to protect the rights of citizens do give rise to liability, including constitutional liability. While these are of intrinsic interest, they also illustrate a broader point on which this Article will focus: how considerations of equity can help define the nature, or specify the limits, of property rights. We often think of equity as filling in the gaps of the law. In the realm of private property, we see—especially in the realm of nuisance law—how equitable considerations help specify, so to speak, the length and weight of the sticks in the “bundle” of property rights.

Keywords: DeShaney, government liability, duty to protect, Castle Rock, Prop 312, Zone, homelessness, CHAZ, CHOP, nuisance