- By now, I think everyone has heard
of what happened in Uvalde, Texas.
I'm not gonna go into detail,
and new facts are coming to light every single day.
But one thing it seems is certain is that the police,
to put a charitably,
did not act in a way that most people wanted them to act.
By all accounts,
there was a very long delay
between the time that the police arrived on scene
and when they took action to stop the shooter.
So, people angry at the tragedy are asking,
"Can the police be held legally responsible,
not for their action, but for their inaction?"
And I'm not gonna hide the ball on this one,
the answer is almost certainly no.
But the reason why might surprise you,
because most people believe
that the police have a legal duty to help.
And unfortunately, according to the Supreme Court,
that is not the case.
While their motto may be to protect and serve,
the police have absolutely no duty whatsoever
to help anyone that's in trouble.
Now, normally, this would be the part of the video
where I run through the factual summary
that gives rise to all of the legal issues.
I'm not gonna do that today
because, honestly, it's just too hard.
But these are important legal issues.
And this is one of those videos
where it's not about what the law should be,
it's about what the law is.
Now, we've talked a lot on this channel
about the difficulty in suing police
for the things that they do,
the mistakes they might have made.
Qualified immunity generally protects police officers,
unless it was clearly established
that what they did was unconstitutional.
There are all kinds of controversies in this doctrine.
This is not the video for those particular questions.
But the question presented
by the Uvalde shooting is different.
Here, we're asking whether government officials
can be sued for actions they did not take.
Now, the Supreme Court has ruled twice
that government actors like police and social workers
actually have no duty to protect anyone.
This precedent was established in 1989
when the Supreme Court decided the case of DeShaney
versus Winnebago County Department of Social Services.
In that case, in 1982,
Joshua DeShaney was a four year old boy
living with his father, Randy, in Wisconsin.
Randy had primary custody of the child
and had recently gone through a second divorce.
Joshua's stepmother
told the Winnebago County Department of Social Services
that Randy abused his son.
Randy denied it,
and the county took no action to remove the child.
However, in 1983, Joshua was seen at the ER for bruises.
The ER doctor notified social services,
and Joshua was removed from Randy's custody for a few days.
Randy wasn't charged,
and the child was returned to his custody.
A social worker was assigned to visit the home.
And in 1984, the social worker visited the house 20 times,
noting that the child had bumps, bruises,
and injuries on his head.
The social worker also documented
that Randy failed to attend his regular counseling sessions
or enrolled Joshua in preschool.
And during this time,
Joshua ended up in the ER twice with suspicious injuries.
The social worker said that she feared for his life
but took no action to remove him from the home.
And unfortunately, in March of 1984,
one day after the social worker's visit,
Randy beat Joshua so hard that he fell into a coma.
Joshua had severe brain damage
and was permanently paralyzed.
The state then placed Joshua
in an institution where he would remain
for the rest of his life.
Joshua DeShaney's mother
sued the Winnebago County Department of Social Services,
alleging that the department had deprived Joshua
of his liberty interest in bodily integrity
in violation of his rights
under the substantive component
of the 14th Amendment's Due Process Clause
by failing to intervene to protect him
against his father's violence.
Now, the Due Process Clause of the 14th Amendment
declares that no state shall deprive any person of life,
liberty, or property without due process of law.
DeShaney argued that the county
had a responsibility to protect Joshua
because it knew Randy abused him.
The social worker had tracked the abuse
on paper for over a year.
DeShaney argued that through the social worker's visits,
the state had established a special relationship
with Joshua that created a responsibility
to protect him from known dangers.
Then, chief justice of the Supreme Court, William Rehnquist,
wrote the majority opinion,
which found that the Due Process Clause
only applies to states, not to private citizens.
Since Randy was the one who beat his son,
the court reason
that the state didn't directly cause Joshua's injuries.
And the majority also rejected the argument
that the state made Joshua more vulnerable.
The purpose of the Due Process Clause, quote,
"was to protect people from the state,
not to ensure that the state protected them
from each other."
The court held that the 14th Amendment
did not grant any citizen a guarantee of, quote,
"minimal levels of safety and security."
The court also said
that people have no right to governmental aid.
The court held that the Due Process Clause
would only apply if the state had assumed custody
of a person against their will,
and then failed to provide for their safety
and general wellbeing.
Justice Brennan and the two other dissenters
saw it another way.
They believed that since the state had acted
through the social work department,
they assumed the responsibility for the child's safety.
The dissenters said that if the state had never intervened,
then others in Joshua's life, like his mother,
might have taken other actions to get him away from Randy.
And basically, in the DeShaney case,
what happens is that a mother is worried that her son,
who's in the custody of the father,
is being abused by the father.
She goes to the police, they send social workers out,
social worker visits 20 times,
sees lots and lots of evidence of abuse.
Ultimately, the social services doesn't do enough,
and the child is horribly and permanently injured
by the father in large part
because social services allowed the child
to remain with the husband.
Now, there are obvious differences
between what happened in Uvalde
and a social worker who fails
to remove a child from a violent parent.
But that takes us to the 2005 case
of the town of Castle Rock, Colorado versus Gonzales,
where the Supreme Court applied the same rationale
to a case involving the police.
Now, in that case,
Jessica Gonzales had asked for a restraining order
against her estranged husband.
There was a Colorado law
that made domestic violence restraining orders mandatory
whenever one party felt threatened.
And the state trial court issued an order
prohibiting the husband from seeing Ms. Gonzales
or their three daughters,
unless it was through a pre-arranged visit.
Now, just one month later,
the husband kidnapped the three children.
Ms. Gonzales had direct evidence that he had the kids
because he confirmed it on the phone.
She begged the police to search for her husband right away
since she violated the court order.
Now, the Castle Rock Police Department
told Ms. Gonzales that it could do nothing,
and told her she had to wait until 10:00 pm
to see if her husband brought the daughters home.
At 10:00 pm, the police told Jessica to wait until midnight.
At midnight, she went to the police station
to beg them to arrest her husband.
An officer took the report and then went to dinner.
A few hours later,
Gonzales's husband went to the police station
and opened fire.
Police killed him in the melee.
And when they searched his truck,
they found the three girls dead in the back.
Gonzales's husband had murdered all three that night.
Ms. Gonzales sued the Castle Rock Police Department
for violating her due process rights.
And the Tenth Circuit Court of Appeals
found that she had a, quote, "protected property interest
in the enforcement of the terms of her restraining order,"
which the police had violated.
But the Supreme Court reversed that decision,
ruling that Gonzales
had no constitutionally protected property interest
in the enforcement of the restraining order,
and, therefore, could not claim
that the police had violated her right to due process.
Justice Antonin Scalia wrote the majority opinion.
He reasoned that the state law didn't entitle anyone
to mandatory action by police,
even though the issue into the restraining order
was mandatory under Colorado law.
Restraining orders provide the grounds
for arresting a person constrained to the order,
but that doesn't mean that the recipient
can force the police to act.
Scalia wrote that under the Colorado law,
police have discretion to decide
whether to enforce an order,
and if so, how they would do so.
The court concluded that, quote,
"since Colorado had not created
such an entitlement to mandatory action,
Gonzales had no property interest,
and the Due Process Clause was therefore inapplicable."
The court ultimately concluded
that unless a legislature specifically said,
"We're creating this right, and if we breach it,
the private citizen can then sue the government,"
then the citizen is out of luck.
And as one court put it, quote,
"Law enforcement officers often consider themselves
responsible for protecting the public
and deterring criminal activity.
However, the legal doctrine that specifies
the legal duty of law enforcement officers
holds that they have a duty to the public,
but not to individual citizens."
This is what's known as the public duty doctrine.
Doctrine means that the officers
don't have a duty to protect citizens
from harm by a third party.
In other words, there is no clear duty
to protect individual citizens.
Now, that being said,
the DeShaney decision recognized two possible exceptions
to the general rule that the state has no duty
to protect people from harm.
The first is what's called
the special relationship exception,
which holds that the constitution imposes
upon the state a duty of care
towards individuals who are in its custody.
As it's usually summarized, quote,
"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 some responsibility
for his safety and well-being."
So when the state has a special relationship with someone,
there may be a duty to protect.
If this relationship exists,
the state official must take reasonable steps
to ensure the safety and care of that person
and to safeguard them against foreseeable risks.
However, most courts say that the only time
the state forms a special relationship
is through incarceration, institutionalization,
or other similar restraint of personal liberty.
And most courts reject the theory
that people waiting to be rescued
are in police custody and control.
This is particularly true in the Fifth Circuit,
and perhaps the most analogous Fifth Circuit case
is Salas versus Carpenter,
where a county clerk was taken hostage
at the courthouse by her abusive boyfriend.
And during the hostage negotiation,
the sheriff ordered that the city SWAT
and Hostage Negotiation Teams leave the courthouse.
He then replaced them with county personnel,
not trained for SWAT or hostage negotiations.
The man killed the county clerk,
and the Fifth Circuit sided with the sheriff,
finding that he did not violate her constitutional rights
by using untrained negotiators.
The court said, quote,
"Generally, the absence of a special relationship
defeats any due process claim based on a failure
to provide protective services.
The victim was not held in state custody
or otherwise prevented by the state from caring for herself.
This was a failed rescue effort."
And it's easy to see how the Fifth Circuit,
which covers Texas, would probably make the same call
in the hypothetical Uvalde case.
The police were doing something,
they were securing the parking lot,
and stopping parents from getting inside
where they might get hurt.
And just because the effort failed and failed badly,
probably wouldn't change the Fifth Circuit's analysis.
But under the DeShaney case, there is a second exception,
and that is called the state-created danger exception.
And under that theory, some courts have recognized
that state officials have a duty to protect individuals
from harm when their actions created
or exacerbated a danger to that individual.
But here, it seems like this exception wouldn't apply.
The police didn't help, at least not in the way
that most people wanted them to help,
but, at the same time,
they also did not create the situation itself.
Now, those of you that have been paying attention,
might have come up with a legal theory
that might differentiate what happened to Uvalde, Texas
from the prior precedent.
And that is that children are mandated to go to school.
Often, those schools are provided by the government.
And in this case, this massacre occurred at a public school.
So aren't the children within the custody of the government,
and doesn't the government then have an obligation
to provide for the health and safety of the children,
especially a school that has a police officer,
and a school district that has its own police department?
Well, it's complicated,
but it probably doesn't turn out the way
that you might want,
because, unfortunately, this is not the first time
there has been a massacre on school campus.
And a relatively recent case is almost directly on subject.
And that is the case arising out of the Parkland situation.
In late 2020, the Eleventh Circuit Court of Appeals
sided the Castle Rock and DeShaney cases,
and dismissed a lawsuit brought
by the victims of the Parkland, Florida shooting
at the Marjory Stoneman Douglas High School.
Now, there, the students alleged that the county sheriff
and deputies incompetently responded
to an active shooter situation
violating their due process rights.
The deputies knew that the shooter
was a danger to the community,
and school officials had also known
that the shooter was deeply troubled and had made threats.
The plaintiffs alleged that the deputies had failed
to intervene during the shooting.
And they also noted that one deputy prevented EMS
from providing lifesaving care
and blocking them from entering the school
during the shooting.
The Eleventh Circuit Court of Appeals,
which is one step below the Supreme Court, found that,
"A plaintiff can only allege a substantive due process claim
in two situations.
First, when the person was in the government's custody
and second, when government official's conduct is arbitrary
or shocks the conscience."
Now, first,
the court held that the children were not in police custody,
and as far as shocking the conscience,
the court held that in an active shooter situation,
police have to make split-second decisions
in the midst of chaos.
In this situation, quote,
"An official's conduct will shock the conscience
only when it stems from a, quote, 'purpose to cause harm.'"
That means that a plaintiff can only sue if they can show
that the government officer purposefully caused harm.
If the police officer didn't intend to hurt anyone,
then they can't be sued.
And with respect
to whether the children were in government custody,
the court held, quote,
"It is well-established that school children
are not in a custodial relationship with the state.
A custodial relationship exists only
if the government places limitations
upon individual's ability to act
on his own behalf that are similar in kind
to incarceration or other forms of involuntary confinement."
School attendance, even when compelled by truancy
and compulsory attendance laws,
is not similar in kind to incarceration
or institutional confinement.
"Ordinarily, there are no custodial relationships
in the public school system,
even if officials are aware of potential dangers
or have expressed an intent to provide aid
on school grounds."
And in the Parkland case,
the biggest controversy was about Scot Peterson,
a Broward County Sheriff's Deputy
and school resource officer.
Peterson stayed outside of a school building
for over 40 minutes
as students and faculty members were gunned down.
And the state of Florida charged Peterson
with neglect under a statute that applies to caregivers.
Now, this is generally a novel interpretation of the law
which usually applies to parents
or adult household members or teachers.
Now, Peterson will stand trial on this criminal case,
but the Eleventh Circuit dismissed the civil case
against Peterson for the same reasons
it dismissed the cases against other defendants,
that the students were not
in a custodial relationship with the officials,
even the school's armed resource officer.
A lot of people disagree with this particular ruling,
and it can be solved with legislation,
but as it currently stands,
there is no inherent cause of action
based on the constitution that would allow parents
and teachers and victims to sue the police
for inaction at Uvalde.
And unfortunately, that is the current state of the law.
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