Safari into the Snake Pit: The State-Created Danger Doctrine

55 Pages Posted: 9 Mar 2007

See all articles by Laura E. Oren

Laura E. Oren

University of Houston Law Center


The state-created danger doctrine in substantive due process analysis seemingly survived the otherwise sweeping "no-duty" rule of DeShaney v. Winnebago Department of Social Services in 1989. Although not willing to impose upon the state an affirmative duty to protect the vulnerable from harm inflicted by a third party, the DeShaney opinion included a caveat: The Court might recognize a constitutional claim where the state not only knew about the potential for harm, but also played a part in creation of the risk or in making the victim more vulnerable.

The circuit courts have cautiously explored this loophole, looking for those cases in which something more than mere omission was involved. They looked for cases in which it could be said that state officials had thrown someone into the snake pit themselves before they refused to help the victim. Every circuit, except the Fifth, has embraced some version of state-created danger. But in no case has this been an easy standard to meet. Aside from factual distinctions, the circuits also seem confused about the appropriate elements of state-created danger. The proper inquiry should focus primarily on the question of whether state officials exercised their authority or power in such a way that they put someone in a worse position than they would otherwise have occupied. In addition, some circuits require substantial risk of harm when the state throws someone in the snake pit. The requisite mental state ("deliberate indifference" or "shocks the conscience" or something different) has been much litigated. Courts go astray, however, when they interject elements that are more tort-like and less constitutional in nature, such as the requirement for a "foreseeable" victim.

Special problems of qualified immunity and municipal liability have also been associated with the state-created danger cases. While at one point it seemed that procedural due process claims might provide an alternative to the much disfavored substantive analysis, after the publication of this article the Court clearly closed off that avenue in the Castle Rock v. Gonzales (2005) opinion.

Keywords: State-Created Danger, Substantive Due Process, Failure to Protect, DeShaney v. Winnebago C'ty Dep't of Soc. Servs., Qualified Immunity, Municipal Liability

Suggested Citation

Oren, Laura E., Safari into the Snake Pit: The State-Created Danger Doctrine. William & Mary Bill of Rights Journal, Vol.13, p. 1139, 2005, Available at SSRN:

Laura E. Oren (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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