In determining whether Ms. Wood was subjected to a constitutional deprivation it is the state of the law on September 23, 1984, which must be used to determine whether the violation occurred.... As of September 23, 1984, no court had ruled that a police officer owed a constitutional duty to make transportation arrangements for a non-intoxicated adult female who was left on the sidewalk of a major urban arterial within easy walking distance of at least two 24–hour businesses following the arrest of the person with whom she had previously been riding.
We hold that an attempt by state officers to assist at an accident is not a deprivation of life without due process of law under the Fourteenth Amendment when the attempt fails because of the negligence or even gross negligence of *594 the officers or their superiors, and the accident victim dies.
If the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit.
... [Capoeman ] places the responsibility for keeping abreast of constitutional developments in criminal law squarely on the shoulders of law enforcement officials. Given the power of such officials over our liberty, and sometimes even over our lives, this placement of responsibility is entirely proper. Law enforcement officials must be cognizant not only of how far their authority extends, but also of the point at which their authority ends. At the same time, however, we do not read [Capoeman ] to require of most government officials the kind of legal scholarship normally associated with law professors and academicians. A reasonable person standard adheres at all times.
The fact that Ostrander arrested Bell, impounded his car, and apparently stranded Wood in a high-crime area at 2:30 a.m. distinguishes Wood from the general public and triggers a duty of the police to afford her some measure of peace and safety. See White v. Rochford, 592 F.2d at 384 and n. 6 (and authorities cited therein). See also Chambers–Castenes v. King Co., 100 Wash.2d 275, 669 P.2d 451 (1983); ... (policy of state to respond to requests for assistance in courteous and judicious manner).1
[T]hat if Wood establishes at trial the facts she has stated in support of her section 1983 action, and which we must accept as true at this stage of the case, Ostrander will not be entitled to qualified immunity. A reasonable police officer who acted as Wood alleges Ostrander acted should have understood that what he was doing violated Wood's constitutional right to be free from an unjustified intrusion into her personal security in violation of her liberty interest under the fourteenth amendment. See Anderson v. Creighton, 107 S.Ct., at 3039; White v. Rochford, 592 F.2d, at 384–85 & 387 (Tone, J., concurring).
Joshua [DeShaney] and his mother brought this action under 42 U.S.C. § 1983 in the United States District Court for the Eastern District of Wisconsin against respondents Winnebago County, its Department of Social Services, and various employees of the Department. The complaint alleged that respondents had deprived Joshua of his liberty without due process of law, in violation of his rights under the Fourteenth Amendment, by failing to intervene to protect him against a risk of violence at his father's hands of which they knew or should have known.
Because of the inconsistent approaches taken by the lower courts in determining when, if ever, the failure of a state or local governmental entity or its agents to provide an individual with adequate protective services constitutes a violation of the individual's due process rights, see Archie v. City of Racine, 847 F.2d 1211, 1220–1223, and n. 10 (CA 7 1988) (en banc) (collecting cases), cert. pending, No. 88–576, and the importance of the issue to the administration of state and local governments, ....
[T]he parole board was not aware that appellants' decedent, as distinguished from the public at large, faced any special danger. We need not and do not decide that a parole officer could never be deemed to ‘deprive’ someone of life by action taken in connection with the release of a prisoner on parole.
But these cases afford petitioners no help. Taken together, they stand only for the proposition that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume responsibility for his safety and general well-being.
The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. [Citation omitted]. In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to of personal liberty—which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harm inflicted by other means.
The Estelle-Youngberg analysis simply has no applicability in the present case. Petitioners concede that the harms Joshua suffered did not occur while he was in the State's custody, but while he was in the custody of his natural father, who was in no sense a state actor. [footnote omitted]. While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it render him any more vulnerable to them. That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father's custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual's safety by having once offered him shelter. Under these circumstances, the State had no constitutional duty to protect Joshua.
Cases from the lower courts also recognize that a State's actions can be decisive in assessing the constitutional significance of 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).
Rochin was not a substantive due process case at all. Its rationale and holding dealt strictly with the procedural guarantees of the due process clause; *601 ‘shocks the conscience’ test to which the Rochin decision gave birth had nothing whatsoever to do with defining an independent and absolute right, as the Court in White apparently assumed. The liberty interest at stake in Rochin was liberty in its classical sense. It was an interest in freedom from physical restraint, a freedom deprived in that case as a result of criminal conviction and incarceration. The Rochin opinion was simply addressed to the question of whether the conviction was obtained by methods satisfying ‘due process of law.’
Wood was an adult female, admittedly able to exercise the independent judgment of an ordinary adult. She was left within walking distance of two open businesses where she could seek help. In this case the State had not affirmatively committed itself to protecting this class of persons. The state at the time of the indictment had no guidelines requiring the safekeeping of passengers of arrestees. In this case, it cannot be said that the state knew of Wood's plight. This is not the type of case where the state had knowledge of a particular madman who was likely to prey on Wood. The plaintiff alleges that this particular area is a high-crime area. To hold that the trooper had a duty of protection on that basis would be to create an affirmative constitutional duty of protection, in essence, to the public as a whole. This court declines to do so. Ostrander was unaware of whether or not she had money available to seek help. Thus, even assuming that an officer in 1984, through some crystal ball analysis, could foresee the analytical approach suggested by the Ninth Circuit in 1986, a special relationship was not created. At the time of the incident Ostrander's conduct did not violate a clearly established constitutional right. Ostrander is entitled to qualified immunity from suit for civil damages. (ER 54, p. 9).
Somewhat more concretely, whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness' of the action. Harlow, 457 U.S., at 819, 102 S.Ct., at 2739, assessed in light of the legal rules that were ‘clearly established’ at the time it was taken, id., at 818, 102 S.Ct., at 2738.
We first note that Capoeman places the responsibility for keeping abreast of constitutional developments in criminal law squarely on the shoulders of law enforcement officials. Given the power of such officials over our liberty, and sometimes even over our lives, this placement of responsibility is entirely proper. Law enforcement officials must be cognizant not only of how far their authority extends, but also of the point at which their authority ends. At the same time, however, we do not read Capoeman to require of most government officials the kind of legal scholarship normally associated with law professors and academicians. A reasonable person standard adheres at all times.
The immunity standard considers whether a reasonable law enforcement officer should view the White case as controlling. Given this element of reasonableness, the qualified immunity regime of clearly established law should not be held to allow section 1983 defendants to interpose lawyerly distinctions that defy common sense in order to distinguish away clearly established law ...
The issue presented by this case is whether police officers may, with constitutional impunity, abandon children and leave them in health-endangering situations after having arrested their custodian and thereby deprived them of adult protection. We hold that they may not, and accordingly, we reverse the district court's dismissal of a complaint alleging such facts and remand for trial.
In the case at bar the children in the car had a federally protected right to be free from the unjustified intrusions on their personal security by the police. Their personal security was under the protection of their uncle. If that protection was removed and no alternative protection was provided, they would be exposed to danger as occupants of an immobilized car on a highspeed expressway and to the cold. Arresting the uncle and thus removing their protection, and yet leaving the children exposed to these hazards, was an unjustified intrusion on the children's personal security.
The majority, by implication, imagination, or otherwise paints a portrait which finds no support in the record. The cases cited do not fit our facts. These cases involve state or governmental agency action directed at a particular person whom the agency or officer has either taken into custody or over whom they have asserted responsibility. Nowhere does the majority face up to the distinction which I make as to the duty owed to the uncle, once arrested, and the absence of duty to the children against whom no action was taken.
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