Governmental Inaction as as Constitutional Tort: DeShaney and Its Aftermath

DeShaney v. Winnebago County Department of Social Services is the Supreme Court\u27s first major effort to define the scope of state and local governments\u27 affirmative obligations under the fourteenth amendment. The Court rejected liability against a county welfare agency and a caseworker for failing to prevent a father from severely beating his four-year-old son. The Court intimated that constitutional affirmative duties exist only where the plaintiff is in the state\u27s custody. Scholarly commentary reads the case as announcing a sweeping prohibition against the imposition of affirmative duties in other contexts. Professors Eaton and Wells demonstrate that the DeShaney opinion is more ambiguous and less categorical than the preliminary scholarly consensus suggests. They argue that much of the Court\u27s reasoning supports a more discriminating treatment of constitutional affirmative duties; one that acknowledges the various ways in which the state may play a part in making someone vulnerable to harm. Although in DeShaney\u27s aftermath some lower courts embrace the sweeping prohibition view of the Supreme Court\u27s opinion, many other courts examine the state\u27s role in exposing the plaintiff to danger. Professors Eaton and Wells prefer the latter approach, arguing that it should be combined with an inquiry into the governmental defendant\u27s state of mind, an issue the Court did not address in DeShaney