Monroe v. Pape

Mr. Justice Douglas delivered the opinion of the Court.

This case presents important questions concerning the construction of R. S. § 1979, 42 U. S. C. § 1983, which reads as follows:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

The complaint alleges that 13 Chicago police officers broke into petitioners' home in the early morning, routed them from bed, made them stand naked in the living room, and ransacked every room, emptying drawers and ripping mattress covers. It further alleges that Mr. Monroe was then taken to the police station and detained on "open" charges for 10 hours, while he was interrogated about a two-day-old murder, that he was not taken before a magistrate, though one was accessible, that he was not permitted to call his family or attorney, and that he was subsequently released without criminal charges being preferred against him. It is alleged that the officers had no search warrant and no arrest warrant and that they acted "under color of the statutes, ordinances, regulations, customs and usages" of Illinois and of the City of Chicago. Federal jurisdiction was asserted under R. S. § 1979, which we have set out above, and 28 U. S. C. § 1343¹ and 28 U. S. C. § 1331.²

The City of Chicago moved to dismiss the complaint on the ground that it is not liable under the Civil Rights Acts nor for acts committed in performance of its governmental functions. All defendants moved to dismiss, alleging that the complaint alleged no cause of action under those Acts or under the Federal Constitution. The District Court dismissed the complaint. The Court of Appeals affirmed, 272 F.2d 365, relying on its earlier decision, Stift v. Lynch, 267 F.2d 237. The case is here on a writ of certiorari which we granted because of a seeming conflict of that ruling with our prior cases. 362 U.S. 926.

I.

Petitioners claim that the invasion of their home and the subsequent search without a warrant and the arrest and detention of Mr. Monroe without a warrant and without arraignment constituted a deprivation of their "rights, privileges, or immunities secured by the Constitution" within the meaning of R. S. § 1979. It has been said that when 18 U. S. C. § 241 made criminal a conspiracy "to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution," it embraced only rights that an individual has by reason of his relation to the central government, not to state governments. United States v. Williams, 341 U.S. 70. Cf. United States v. Cruikshank, 92 U.S. 542; Ex parte Yarbrough, 110 U.S. 651; Guinn v. United States, 238 U.S. 347. But the history of the section of the Civil Rights Act presently involved does not permit such a narrow interpretation.

Section 1979 came onto the books as § 1 of the Ku Klux Act of April 20, 1871. 17 Stat. 13. It was one of the means whereby Congress exercised the power vested in it by § 5 of the Fourteenth Amendment to enforce the provisions of that Amendment. Senator Edmunds, Chairman of the Senate Committee on the Judiciary, said concerning this section:

"The first section is one that I believe nobody objects to, as defining the rights secured by the Constitution of the United States when they are assailed by any State law or under color of any State law, and it is merely carrying out the principles of the civil rights bill, which has since become a part of the Constitution," viz, the Fourteenth Amendment.

Its purpose is plain from the title of the legislation, An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes" 17 Stat. 13 Allegation of facts constituting a deprivation under color of state authority of a right quaranteed by the Fourteenth Amendment satisfies to that extent the requirement of R.S. § 1979. See Douglas v. Jeanette, 319 U.S. 157, 161-162. So far petitioners are on solid fround. For the guarantee against unreasonable searches and seizures contained in the Fourth Amendment has been made applicable to the States by reason of the Due Process Clause of the Fourteenth Amendment. Wolf v. Colorado, 338 U.S.; Elkins v. United States, 364 U.S. 206, 213.

II.

There can be no doubt at least since Ex parte Virginia, 100 U.S. 339, 346-347, that Congress has the power to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it. See Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278, 287-296. The question with which we now deal is the narrower one of whether Congress, in enacting § 1979, meant to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position. Cf. Williams v. United States, 341 U.S. 97; Screws v. United States, 325 U.S. 91; United States v. Classic, 313 U.S. 299. We conclude that it did so intend.

It is argued that "under color of" enumerated state authority excludes acts of an official or policeman who can show no authority under state law, state custom, or state usage to do what he did. In this case it is said that these policemen, in breaking into petitioners' apartment, violated the Constitution⁶ and laws of Illinois. It is pointed out that under Illinois law a simple remedy is offered for that violation and that, so far as it appears, the courts of Illinois are available to give petitioners that full redress which the common law affords for violence done to a person; and it is earnestly argued that no "statute, ordinance, regulation, custom or usage" of Illinois bars that redress.

> The Ku Klux Act grew out of a message sent to Congress by President Grant on March 23, 1871, reading:

"A condition of affairs now exists in some States of the Union rendering life and property insecure and the carrying of the mails and the collection of the revenue dangerous. The proof that such a condition of affairs exists in some localities is now before the Senate. That the power to correct these evils is beyond the control of State authorities I do not doubt; that the power of the Executive of the United States, acting within the limits of existing laws, is sufficient for present emergencies is not clear. Therefore, I urgently recommend such legislation as in the judgment of Congress shall effectually secure life, liberty, and property, and the enforcement of law in all parts of the United States. . . ."

But the purposes were much broader. The third aim was to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice. The opposition to the measure complained that "It overrides the reserved powers of the,"¹⁰ just as they argued that the second section of the bill "absorb[ed] the entirejurisdiction of the States over their local and domestic affairs."

This Act of April 20, 1871, sometimes called "the third 'force bill,'" was passed by a Congress that had the Klan "particularly in mind." The debates are replete with references to the lawless conditions existing in the South in 1871. There was available to the Congress during these debates a report, nearly 600 pages in length, dealing with the activities of the Klan and the inability of the state governments to cope with it.¹³ This report was drawn on by many of the speakers. It was not the unavailability of state remedies but the failure of certain States to enforce the laws with an equal hand that furnished the powerful momentum behind this "force bill." Mr. Lowe of Kansas said:

"While murder is stalking abroad in disguise, while whippings and lynchings and banishment have been visited upon unoffending American citizens, the local administrations have been found inadequate or unwilling to apply the proper corrective. Combinations, darker than the night that hides them, conspiracies, wicked as the worst of felons could devise, have gone unwhipped of justice. Immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress."

Mr. Beatty of Ohio summarized in the House the case for the bill when he said:

". . . certain States have denied to persons within their jurisdiction the equal protection of the laws. The proof on this point is voluminous and unquestionable. . . . Men were murdered, houses were burned, women were outraged, men were scourged, and officers of the law shot down; and the State made no successful effort to bring the guilty to punishment or afford protection or redress to the outraged and innocent. The State, from lack of power or inclination, practically denied the equal protection of the law to these persons."

While one main scourge of the evil -- perhaps the leading one -- was the Ku Klux Klan, the remedy created was not a remedy against it or its members but against those who representing a State in some capacity were unable or unwilling to enforce a state law.

Mr. Hoar of Massachusetts stated:

" Now, it is an effectual denial by a State of the equal protection of the laws when any class of officers charged under the laws with their administration permanently and as a rule refuse to extend that protection. If every sheriff in South Carolina refuses to serve a writ for a colored man and those sheriffs are kept in office year after year by the people of South Carolina, and no verdict against them for their failure of duty can be obtained before a South Carolina jury, the State of South Carolina, through the class of officers who are its representatives to afford the equal protection of the laws to that class of citizens, has denied that protection. If the jurors of South Carolina constantly and as a rule refuse to do justice between man and man where the rights of a particular class of its citizens are concerned, and that State affords by its legislation no remedy, that is as much a denial to that class of citizens of the equal protection of the laws as if the State itself put on its statute-book a statute enacting that no verdict should be rendered in the courts of that State in favor of this class of citizens."

"It authorizes any person who is deprived of any right, privilege, or immunity secured to him by the Constitution of the United States, to bring an action against the wrong-doer in the Federal courts, and that without any limit whatsoever as to the amount in controversy. The deprivation may be of the slightest conceivable character, the damages in the estimation of any sensible man may not be five dollars or even five cents; they may be what lawyers call merely nominal damages; and yet by this section jurisdiction of that civil action is given to the Federal courts instead of its being prosecuted as now in the courts of the States."

We had before us in United States v. Classic, supra, § 20 of the Criminal Code, 18 U. S. C. § 242, which provides a criminal punishment for anyone who "under color of any law, statute, ordinance, regulation, or custom" subjects any inhabitant of a State to the deprivation of "any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States." Section 242 first came into the law as § 2 of the Civil Rights Act, Act of April 9, 1866, 14 Stat. 27. After passage of the Fourteenth Amendment, this provision was re-enacted and amended by §§ 17, 18, Act of May 31, 1870, 16 Stat. 140, 144. The right involved in the Classic case was the right of voters in a primary to have their votes counted. The laws of Louisiana required the defendants "to count the ballots, to record the result of the count, and to certify the result of the election." United States v. Classic, supra, 325-326. But according to the indictment they did not perform their duty. In an opinion written by Mr. Justice (later Chief Justice) Stone, in which Mr. Justice Roberts, Mr. Justice Reed, and Mr. Justice Frankfurter joined, the Court ruled, "Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color of' state law." Id., 326. There was a dissenting opinion; but the ruling as to the meaning of "under color of" state law was not questioned.

That view of the meaning of the words "under color of" state law, 18 U. S. C. § 242, was reaffirmed in Screws v. United States, supra, 108-113. The acts there complained of were committed by state officers in performance of their duties, viz., making an arrest effective. It was urged there, as it is here, that "under color of" state law should not be construed to duplicate in federal law what was an offense under state law. Id. (dissenting opinion) 138-149, 157-161. It was said there, as it is here, that the ruling in the Classic case as to the meaning of "under color of" state law was not in focus and was ill-advised. Id. (dissenting opinion) 146-147. It was argued there, as it is here, that "under color of" state law included only action taken by officials pursuant to state law. Id. (dissenting opinion) 141-146. We rejected that view. Id., 110-113 (concurring opinion) 114-117. We stated:

"The construction given § 20 [18 U. S. C. § 242] in the Classic case formulated a rule of law which has become the basis of federal enforcement in this important field. The rule adopted in that case was formulated after mature consideration. It should be good for more than one day only.

Section 131 (c) of the Act of September 9, 1957, 71 Stat. 634, 637, amended 42 U. S. C. § 1971 by adding a new subsection which provides that no person "whether acting under color of law or otherwise" shall intimidate any other person in voting as he chooses for federal officials. A vigorous minority report was filed attacking the wide scope of the new subsection by reason of the words "or otherwise." It was said in that minority report that those words went far beyond what this Court had construed "under color of law" to mean. But there was not a word of criticism directed to the prior construction given by this Court to the words "under color of" law.

The Act of May 6, 1960, 74 Stat. 86, uses "under color of" law in two contexts, once when § 306 defines "officer of election" and next when § 601 (a) gives a judicial remedy on behalf of a qualified voter denied the opportunity to register. Once again there was a Committee report containing minority views. Once again no one challenged the scope given by our prior decisions to the phrase "under color of" law.

If the results of our construction of "under color of" law were as horrendous as now claimed, if they were as disruptive of our federal scheme as now urged, if they were such an unwarranted invasion of States' rights as pretended, surely the voice of the opposition would have been heard in those Committee reports. Their silence and the new uses to which "under color of" law have recently been given reinforce our conclusion that our prior decisions were correct on this matter of construction.

We conclude that the meaning given "under color of" law in the Classic case and in the Screws and Williams cases was the correct one; and we adhere to it.

In the Screws case we dealt with a statute that imposed criminal penalties for acts "wilfully" done. We construed that word in its setting to mean the doing of an act with "a specific intent to deprive a person of a federal right." 325 U.S., at 103. We do not think that gloss should be placed on § 1979 which we have here. The word "wilfully" does not appear in § 1979. Moreover, § 1979 provides a civil remedy, while in the Screws case we dealt with a criminal law challenged on the ground of vagueness. Section 1979 should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.

So far, then, the complaint states a cause of action. There remains to consider only a defense peculiar to the City of Chicago.

From my point of view, the policy of stare decisis, as it should be applied in matters of statutory construction, and, to a lesser extent, the indications of congressional acceptance of this Court's earlier interpretation, require that it appear beyond doubt from the legislative history of the 1871 statute that Classic and Screws misapprehended the meaning of the controlling provision, before a departure from what was decided in those cases would be justified. Since I can find no such justifying indication in that legislative history, I join the opinion of the Court. However, what has been written on both sides of the matter makes some additional observations appropriate.

Those aspects of Congress' purpose which are quite clear in the earlier congressional debates, as quoted by my Brothers Douglas and Frankfurter in turn, seem to me to be inherently ambiguous when applied to the case of an isolated abuse of state authority by an official. One can agree with the Court's opinion that:

"It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies. . . ."

I.

If the state remedy was considered adequate when the official's unconstitutional act was unauthorized, why should it not be thought equally adequate when the unconstitutional act was authorized? For if one thing is very clear in the legislative history, it is that the Congress of 1871 was well aware that no action requiring state judicial enforcement could be taken in violation of the Fourteenth Amendment without that enforcement being declared void by this Court on direct review from the state courts. And presumably it must also have been understood that there would be Supreme Court review of the denial of a state damage remedy against an official on grounds of state authorization of the unconstitutional action. It therefore seems to me that the same state remedies would, with ultimate aid of Supreme Court review, furnish identical relief in the two situations.

The statute becomes more than a jurisdictional provision only if one attributes to the enacting legislature the view that a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and therefore deserves a different remedy even though the same act may constitute both a state tort and the deprivation of a constitutional right. This view, by no means unrealistic as a common-sense matter,⁵ is, I believe, more consistent with the flavor of the legislative history than is a view that the primary purpose of the statute was to grant a lower court forum for fact findings. For example, the tone is surely one of overflowing protection of constitutional rights, and there is not a hint of concern about the administrative burden on the Supreme Court...

Senator Carpenter reflected a similar belief that the protection granted by the statute was to be very different from the relief available on review of state proceedings:

"The prohibition in the old Constitution that no State should pass a law impairing the obligation of contracts was a negative prohibition laid upon the State. Congress was not authorized to interfere in case the State violated that provision. It is true that when private rights were affected by such a State law, and that was brought before the judiciary, either of the State or nation, it was the duty of the court to pronounce the act void; but there the matter ended. Under the present Constitution, however, in regard to those rights which are secured by the fourteenth amendment, they are not left as the right of the citizen in regard to laws impairing the obligation of contracts was left, to be disposed of by the courts as the cases should arise between man and man, but Congress is clothed with the affirmative power and jurisdiction to correct the evil.

"I think there is one of the fundamental, one of the great, the tremendous revolutions effected in our Government by that article of the Constitution. It gives Congress affirmative power to protect the rights of the citizen, whereas before no such right was given to save the citizen from the violation of any of his rights by State Legislatures, and the only remedy was a judicial one when the case arose."
Id., at 577.

Abstractly stated, this case concerns a matter of statutory construction. So stated, the problem before the Court is denuded of illuminating concreteness and thereby of its far-reaching significance for our federal system. Again abstractly stated, this matter of statutory construction is one upon which the Court has already passed. But it has done so under circumstances and in settings that negative those considerations of social policy upon which the doctrine of stare decisis, calling for the controlling application of prior statutory construction, rests.

Insofar as the Court undertakes to demonstrate -- as the bulk of its opinion seems to do -- that § 1979 was meant to reach some instances of action not specifically authorized by the avowed, apparent, written law inscribed in the statute books of the States, the argument knocks at an open door. No one would or could deny this, for by its express terms the statute comprehends deprivations of federal rights under color of any "statute, ordinance, regulation, custom, or usage" of a State. (Emphasis added.) The question is, what class of cases other than those involving state statute law were meant to be reached. And, with respect to this question, the Court's conclusion is undermined by the very portions of the legislative debates which it cites. For surely the misconduct of individual municipal police officers, subject to the effective oversight of appropriate state administrative and judicial authorities, presents a situation which differs toto coelo from one in which "Immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress," or in which murder rages while a State makes "no successful effort to bring the guilty to punishment or afford protection or redress," or in which the "State courts . . . [are] unable to enforce the criminal laws . . . or to suppress the disorders existing," or in which, in a State's "judicial tribunals one class is unable to secure that enforcement of their rights and punishment for their infraction which is accorded to another," or "of . . . hundreds of outrages . . . not one [is] punished," or "the courts of the . . . States fail and refuse to do their duty in the punishment of offenders against the law," or in which a "class of officers charged under the laws with their administration permanently and as a rule refuse to extend [their] protection." These statements indicate that Congress -- made keenly aware by the post-bellum conditions in the South that States through their authorities could sanction offenses against the individual by settled practice which established state law as truly as written codes -- designed § 1979 to reach, as well, official conduct which, because engaged in "permanently and as a rule," or "systematically," came through acceptance by law-administering officers to constitute "custom, or usage" having the cast of law. See Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 362, 369. They do not indicate an attempt to reach, nor does the statute by its terms include, instances of acts in defiance of state law and which no settled state practice, no systematic pattern of official action or inaction, no "custom, or usage, of any State," insulates from effective and adequate reparation by the State's authorities.

Rather, all the evidence converges to the conclusion that Congress by § 1979 created a civil liability enforceable in the federal courts only in instances of injury for which redress was barred in the state courts because some "statute, ordinance, regulation, custom, or usage" sanctioned the grievance complained of. This purpose, manifested even by the so-called "Radical" Reconstruction Congress in 1871, accords with the presuppositions of our federal system. The jurisdiction which Article III of the Constitution conferred on the national judiciary reflected the assumption that the state courts, not the federal courts, would remain the primary guardians of that fundamental security of person and property which the long evolution of the common law had secured to one individual as against other individuals. The Fourteenth Amendment did not alter this basic aspect of our federalism.

Of course, these last considerations would be irrelevant to our duty if Congress had demonstrably meant to reach by § 1979 activities like those of respondents in this case. But where it appears that Congress plainly did not have that understanding, respect for principles which this Court has long regarded as critical to the most effective functioning of our federalism should avoid extension of a statute beyond its manifest area of operation into applications which invite conflict with the administration of local policies. Such an extension makes the extreme limits of federal constitutional power a law to regulate the quotidian business of every traffic policeman, every registrar of elections, every city inspector or investigator, every clerk in every municipal licensing bureau in this country. The text of the statute, reinforced by its history, precludes such a reading.

In concluding that police intrusion in violation of state law is not a wrong remediable under R. S. § 1979, the pressures which urge an opposite result are duly felt. The difficulties which confront private citizens who seek to vindicate in traditional common-law actions their state-created rights against lawless invasion of their privacy by local policemen are obvious, and obvious is the need for more effective modes of redress. The answer to these urgings must be regard for our federal system which presupposes a wide range of regional autonomy in the kinds of protection local residents receive. If various common-law concepts make it possible for a policeman -- but no more possible for a policeman than for any individual hoodlum intruder -- to escape without liability when he has vandalized a home, that is an evil. But, surely, its remedy devolves, in the first instance, on the States. Of course, if the States afford less protection against the police, as police, than against the hoodlum -- if under authority of state "statute, ordinance, regulation, custom, or usage" the police are specially shielded --§ 1979 provides a remedy which dismissal of petitioners' complaint in the present case does not impair. Otherwise, the protection of the people from local delinquencies and shortcomings depends, as in general it must, upon the active consciences of state executives, legislators and judges.⁷¹ Federal intervention, which must at best be limited to securing those minimal guarantees afforded by the evolving concepts of due process and equal protection, may in the long run do the individual a disservice by deflecting responsibility from the state lawmakers, who hold the power of providing a far more comprehensive scope of protection. Local society, also, may well be the loser, by relaxing its sense of responsibility and, indeed, perhaps resenting what may appear to it to be outside interference where local authority is ample and more appropriate to supply needed remedies.

This is not to say that there may not exist today, as in 1871, needs which call for congressional legislation to protect the civil rights of individuals in the States. Strong contemporary assertions of these needs have been expressed. Report of the President's Committee on Civil Rights, To Secure These Rights (1947); Chafee, Safeguarding Fundamental Human Rights: The Tasks of States and Nation, 27 Geo. Wash. L. Rev. 519 (1959). But both the insistence of the needs and the delicacy of the issues involved in finding appropriate means for their satisfaction demonstrate that their demand is for legislative, not judicial, response. We cannot expect to create an effective means of protection for human liberties by torturing an 1871 statute to meet the problems of 1960.

Notes on Monroe v. Pape

A. Mechanisms to Redress Violations of Federal Constitutional Rights

1. Except for the just compensation clause of the Fifth Amendment, the United States Constitution does not explicitly provide for damages to redress constitutional violations. Do the following mechanisms afford adequate protection of constitutional rights?
   1. Criminal penalties against the official who violates the Constitution. 18 U. S. C. § 242.

   2. The exclusionary rule. Mapp v. Ohio, 367 U.S. 643 (1961).

   3. Internal disciplinary action against the state or local official.

   4. Legislative enactment of a private bill authorizing compensation to the particular individual whose constitutional right has been violated.

   5. State tort law.

2. Is a damage remedy an appropriate mechanism to ensure that government and its officials do not disregard individual liberties guaranteed by the Constitution?
   1. In light of the similarities between the goals (deterrence) and mechanisms (cost-internalization) of private law damages and constitutional cost remedies, perhaps it should come as no surprise that courts and commentators have routinely applied conventional assumptions about the behavior of firms in market environments to government behavior. Discussions of constitutional cost remedies usually start from the assumption that the incentive effects of cost-internalization will be the same for government as for private firms and that cost-benefit analysis by government decisionmakers will result in socially optimal choices about activities that threaten constitutional rights. Courts and commentators usually take for granted that government will respond to cost-internalization more or less like a corporation, so that requiring government to compensate the victims of takings or constitutional torts ensures that government will take full account of the costs of its actions.

      If the government does not respond to costs and benefits in the same way as a private firm, however, then none of these predictions about the instrumental effects of constitutional cost remedies on government behavior is likely to be accurate. In fact, for reasons that are elaborated below, there is every reason to expect government to behave quite differently from private firms. Because government actors respond to political, not market, incentives, we should not assume that government will internalize social costs just because it is forced to make a budgetary outlay. They only way to predict the effects of constitutional cost remedies is to convert the financial costs they impose into political costs. This may be possible, but only by constructing models of government decisionmaking that are capable of exchanging economic costs and benefits into political currency. As this Article goes on to demonstrate, any such model will be highly contextual, complex, and controversial.

      Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. Chi. L. Rev. 345, 347 (2000).

   2. For those who accept the desirability of constitutional change, the right-remedy gap has a silver lining. Put simply, the limitations on money damages for constitutional violations facilitate constitutional change. The doctrines that deny full individual remediation reduce the cost of innovation, thereby advancing the growth and development of constitutional law. If constitutional tort doctrine were reformed to assure full remediation, the costs of compensation would constrict the future of constitutional law.

      John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law , 109 Yale L.J. 87, 98 (1999).

   3. [F]ar from having a uniformly negative influence on courts' willingness to expand rights, constitutional tort actions have shifted courts' attention to the injury suffered by individuals. In doing so, they have influenced courts to establish constitutional rights that protect individuals from governmental injury and regulate the government's power to inflict harm. The current concept of individual harm is an integral part of many constitutional rights. Rather than having a wholly negative effect on the reach of constitutional rights, the constitutional tort remedy contributes to a broader process of rights definition where abstract constitutional provisions are translated into terms relevant to the injuries of individuals.

      James J. Park, The Constitutional Tort Action as Individual Remedy, 38 Harv. C.R.-C.L. L. Rev. 393, 419 (2003).

   

   B. The Appropriate Forum for Adjudication

3. Should allegations that state or local officials have violated federal constitutional rights be resolved in state courts or federal courts?

   1. The Congress that enacted the Civil Rights Act of 1871, § 1 of which is the precursor to Section 1983, distrusted the state judicial systems for several reasons. State court judges in the South had attempted to impede Reconstruction policies by convicting federal officials of crimes for instituting those policies. Moreover, state judges issued writs of habeas corpus to release persons who were incarcerated under federal authority for interfering with Reconstruction. The southern states also barred blacks from testifying in court, bringing suits, and serving as jurors.

      Developments in the Law - Section 1983 and Federalism, 90 Harv. L. Rev. 1133, 1150-52 (1977).

   2. The United States Supreme Court expressly recognized that the legislative history of Section 1983:

      [m]akes evident that Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officials might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts.

      Section 1983 was thus a product of a vast transformation from the concepts of federalism that had prevailed in the late 18th century when the anti-injunction statute was enacted. The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people’s federal rights--to protect the people from unconstitutional action under color of state law, “whether that action be executive, legislative, or judicial.”

      Mitchum v. Foster, 407 U.S. 225, 242 (1972) (§ 1983 is an “expressly authorized” exception to statute barring federal court injunction to stay proceedings in a state court, 28 U.S.C. § 2283)

   3. In Patsy v. Board of Regents, 457 U.S. 496, 503-07 (1982), the Court relied upon the 1871 legislature's view as to the appropriate forum for adjudication of federal constitutional rights in holding that a Section 1983 plaintiff is not generally required to exhaust state administrative remedies:

      At least three recurring themes in the debates over §1 cast doubt on the suggestion that requiring exhaustion of state administrative remedies would be consistent with the intent of the 1871 Congress. First, in passing §1, Congress assigned to federal courts a paramount role in protecting constitutional rights.

      * * * * *

      A second theme in the debates further suggests that the 1871 Congress would not have wanted to impose an exhaustion requirement. A major factor motivating the expansion of federal jurisdiction through §§1 and 2 of the bill was the belief of the 1871 Congress that the state authorities had been unable or unwilling to protect the constitutional rights of individuals or to punish those who violated those rights.

      * * * * *

      A third feature of the debates relevant to the exhaustion question is the fact that many legislators interpreted the bill to provide dual or concurrent forums in the state and federal system, enabling the plaintiff to choose the forum in which to seek relief.

      But see The Prison Litigation Reform Act of 1995, 42 U.S.C. §1997e ("No action shall be brought with respect to prison conditions under [§1983] . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative procedures as are available are exhausted"); Heck v. Humphrey 512 U.S. 477, 486-87(1994) ([I]n order to recover damages for alledgedly unconstitutional conviction or imprisonment, or for other harm caused by actions whos unlawfulness would render a conviction or sentence invalid, a Section 1983 plaintiff must prove that the conviction has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus . . .").

4. Does the background to Section 1983 demand or justify a disregard of traditional federalism notions? Are the concerns of the enacting Congress valid today?
   1. Former Supreme Court Justice Blackmun has expressed wariness over invoking traditional federalism concerns to limit the role Section 1983 plays in vindicating constitutional rights:

      In my view, any plan to restrict the scope of § 1983 comes with a heavy burden of justification--a burden that is both constitutional and historical. The constitutional burden is the need to demonstrate that the interests of federalism, comity, or judicial efficiency can be advanced without sacrificing protection for our constitutional rights. If increased state autonomy and reduced federal caseloads can be purchased only with the coin of more constitutional violations and fewer constitutional remedies, the price is high and is one I am not prepared to pay. Nor is it one, by the way, that critics of § 1983 usually attempt to justify.

      The historical burden is the need to show, in light of the systematic disregard of civil rights by state governments and state courts that led to the original Civil Rights Acts, that constitutional claims can safely be committed to state courts, not only for the present but for the future. It is no reflection on the current good faith of state governments and state courts to observe that history is not a one-way street. While we all can work to prevent a return to the judicial indifference and paralysis of the past, none of us can guarantee that the day will not return when a litigant who cannot vindicate his constitutional rights in federal court will not be able to vindicate them at all. If that day should come, it will be far harder to reconstruct a statutory remedy that has been judicially interred or legislatively undone in the meantime than it would be to resort to a remedy that has been intact and working in the intervening years. In short, once we restrict the role of federal courts in protecting constitutional rights, we may find ourselves hard pressed to recover what has been given up.

      * * * * *

      When the Fourteenth Amendment became part of the Constitution, it committed this Nation to an order in which all governments, state as well as federal, were bound to respect the fundamental rights of individuals. That commitment, too, is a part of “Our Federalism,” no less than the values of state autonomy than the critics of § 1983 so passionately invoke.

      Hon. Harry A. Blackmun, Section 1983 and Federal Protection of Individual Rights - Will the Statute Remain Alive or Fade Away?, 60 N.Y.U. L. Rev. 1, 3-20 (1985).

   2. Contrary to the cautions expressed by Justice Blackmun, Justice O’Connor has suggested that state courts should no longer be saddled by the distrust accorded when the federal remedy for constitutional violations was enacted.

      State courts will undoubtedly continue in the future to litigate federal constitutional questions. State judges in assuming office take an oath to support the federal as well as the state constitution. State judges do in fact rise to the occasion when given the responsibility and opportunity to do so. It is a step in the right direction to defer to the state courts and give finality to their judgments on federal constitution questions where a full and fair adjudication has been given in the state court.

      * * * * *

      Proposals are sometimes made to restrict federal court jurisdiction over certain types of cases or issues. Among the proposals which have merit from the perspective of a state court judge are...a requirement of exhaustion of state remedies as a prerequisite to bringing a federal action under Section 1983. If we are serious about strengthening our state courts and improving their capacity to deal with federal constitutional causes, then we will not allow a race to the courthouse to determine whether another will be heard first in the federal or state court. We should allow the state courts to rule first on the constitutionality of state statutes.

      Hon. Sandra Day O’Connor, Trends in the Relationship Between the Federal and State Courts from the Perspective of a State Court Judge, 22 Wm. & Mary L. Rev. 801, 814-815 (1981) (emphasis in original). See also Ruggero J. Aldisert, State Courts and Federalism in the 1980's, 22 Wm. & Mary L. Rev. 821 (1981).

   3. An empirical study compared the disposition of federal constitutional issues by federal and state courts. Michael E. Solimine and James L. Walker, Constitutional Litigation in Federal and State Courts: An Empirical Analysis of Judicial Parity, 10 Hastings Const. L.Q. 213 (1983). The authors evaluated a random sampling of reported decisions of federal district courts and state appellate and supreme courts for the years 1974 through 1980 involving claims based upon the First and Fourteenth Amendments and the Equal Protection Clause of the Fourteenth Amendment. The study generated the following data:

   Results of All Cases

   Claim Upheld	36%
   Claim Denied	64%

   Results by Court System

   	Claim Upheld	Claim Denied
   Federal Court	41%	59%
   State Court	32%	68%

   Outcome Versus Forum by Case Type

   	Civil Cases		Criminal Cases
   	Upheld	Denied	Upheld	Denied
   Federal Court	44.6%	55.4%	33.9%	66.1%
   State Court	33.2%	66.8%	30.5%	69.5%

   Id. at 239-42.

   Did the study examine a proper sampling of cases? See Kevin M. Clermont and Theordore Eisenberg, Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ From Negotiable Instruments, 2002 U. Ill. L. Rev. 947 (2002) (concluding that defendants are much more likely than plaintiffs to obtain reversal on appeal after trial in civil rights cases due to anti-plaintiff appellate bias). What do the results indicate with respect to the litigation of federal constitutional claims in state as opposed to federal courts?

5. The Monroe decision, together with the Supreme Court’s selective incorporation of the guarantees of the Bill of Rights into the Fourteenth Amendment, triggered a dramatic increase in the number of Section 1983 actions filed in federal courts. A total of 280 federal actions were filed under all civil rights statutes in 1960, the year before Monroe was decided. 1960 Annual Report of the Director for the Administrative Office of the United States Courts (Annual Report) at 232. The following chart, derived from the Annual Reports, documents the growth of civil rights filings in the aftermath of Monroe.

   United States District Courts
   Civil Cases Commenced, By Nature of Suit
   For Selected Years From 1976 Through 1995

   Nature of the Suit	1976	1979	1982	1985	1986	1990	1995
   Civil Rights, General*	6,079	6,917	8,727	10,757	10,368	9,780	16,482
   State Prisoner Civil Rights Actions**	6,958	11,195	16,741	18,491	20,000	25,992	41,679

   * Does not include civil rights actions concerning voting, employment, accommodations, welfare, or prisoner civil rights actions.
   ** Does not include habeas corpus petitions.

   The surge in civil rights filings has been accompanied by a general expansion in federal litigation. Efforts to control mushrooming caseloads by authorizing additional federal judgeships have not alleviated the problem. In 1960, there were 226 district court judgeships with an average of 221 cases per judge. 1960 Annual Report, p.86. In 1980, after more than a doubling of authorized judgeships, the average caseload for the 516 judges was 327. 1987 Annual Report, p.7. By 1987, there were 575 district court judges with an average caseload of 416 cases. Id.

   1. One study disputes the notion that the federal courts experienced a major increase in Section 1983 filings in the wake of Monroe v. Pape. Theodore Eisenberg and Stewart Schwab, The Reality of Constitutional Tort Litigation, 72 Cornell L. Rev. 641 (1987). The authors, analyzing filings in the United States District Court for the Central District of California, concluded:

      Both national data published by the Administrative Office of the United States Supreme Court and our findings about a key federal district suggest that the image of a civil rights litigation explosion is overstated and borders on myth. Although the typical constitutional tort case is longer and more involved than the average civil filing, civil rights litigation--including the core Section 1983 cases--is not exploding. The explosion claim, usually based on quick citation to Administrative Office statistics, lumps all civil rights cases together, sometimes even including prisoner habeas corpus filings. Because much of the growth in civil rights litigation comes from modern statutes, particularly Title VII employment discrimination cases, these gross Administration Office statistics are overinclusive and mask as much as they reveal. Detailed examination of the Administrative Office data and of the cases filed shows a much more moderate figure.

      * * * * *

      The seventeen judges in the Central District in 1980-81 each averaged slightly more than one constitutional tort filing per month. To put this figure in the perspective of the Central District’s workload, in 1980-81 the Central District had 6707 total civil filings. Combined prisoner and non-prisoner constitutional tort filings thus comprised approximately 3.5% of the District’s civil caseload. This figure rises to 4.1% if the hybrid title VII/Section 1983 cases are included.

      Id. at 642-43, 671. See also Theodore Eisenberg, Section 1983: Doctrinal Foundations and an Empirical Study, 67 Cornell L. Rev. 482 (1982).

   2. Do concerns with the burden that Section 1983 actions place on the federal docket justify returning to state courts claims of unconstitutional action by state and local officials?
   1. In view of the great caseload increase in the federal courts and the expressed desire of the Reagan administration to hold down the federal budget, one would think that Congressional action might be taken to limit the use of Section 1983. It could be accomplished either directly, or indirectly by limiting or disallowing recovery of attorney’s fees. Such a move would be welcomed by state courts, as well as by state legislatures and executive officers.

      Hon. Sandra Day O’Connor, Trends in the Relationship Between Federal and State Courts from the Perspective of a State Court Judge, 22 Wm. & Mary L. Rev. 801, 810 (1981).

   2. If critics are concerned by the sheer burden placed on the federal judiciary by § 1983 actions, they might do well to turn their attention, too, to other sources of federal litigation. My point is simply that if we want to nominate a particular group of cases for exclusion from the federal courts, we should look first at groups in which federal law is not sensitively at issue rather than at one in which fundamental constitutional rights are at stake.

      Hon. Harry A. Blackmun, Section 1983 and Federal Protection of Individual Rights - Will the Statute Remain Alive or Fade Away?, 60 N.Y.U. L. Rev. 1, 3-20 (1985).

6. Section 1983 was not the only vehicle employed by Congress to enlarge the power of federal courts and thereby expand the federal government’s control over state activities. In addition to the Ku Klux Klan Act of 1871, 17 Stat. 13, Congress enacted four other civil rights statutes: Act of April 9, 1866, 14 Stat. 27 (outlawing Black Codes); Act of May 31, 1870, 16 Stat. 140 (protecting voting rights); Act of Feb. 28. 1871, 16 Stat. 433 (protecting voting rights); Act of March 1, 1875, 18 Stat. 335 (prohibiting discrimination in public accommodations). Federal habeas corpus, which principally had permitted federal court review of the constitutionality of confinement of prisoners by the United States, was expanded to allow review of the constitutionality of decisions of state courts. Act of Feb. 15, 1867, 14 Stat. 385 (currently codified at 28 U.S.C. § 2241 (c)(3)). Finally, in 1875, the jurisdiction of the federal courts was broadened to include general federal question jurisdiction. 28 U.S.C. § 1331. See Developments in the Law - Section 1983 and Federalism, 90 Harv. L. Rev. 1133, 1147-49 (1977).
   

   C. The "Under Color of Law" Requirement

7. The Fourteenth Amendment to the United States Constitution is violated only by conduct deemed “state action.” In Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), the Supreme Court held that if challenged activities constituted “state action” within the meaning of the Fourteenth Amendment, such conduct also would satisfy the “under color of state law” element of Section 1983. However, in a footnote the Court observed:

   Our conclusion...is not inconsistent with the statement...that “these two elements [state action and action under color of state law] denote two separate areas of inquiry.” [Citation omitted]. First, although we hold that conduct satisfying the state action requirement of the Fourteenth Amendment satisfies the statutory requirement of action under color of state law, it does not follow from that that all conduct that satisfies the under color of state law requirement would satisfy the Fourteenth Amendment requirement of state action. If action under color of state law means nothing more than the individual act “with the knowledge of and pursuant to that statute,”...then clearly under Flagg Brothers that would not, in itself, satisfy the state action requirement if the Fourteenth Amendment. Second...§ 1983 is applicable to other constitutional provisions and statutory provisions that contain no state action requirement. Where such a federal right is at issue, the statutory concept of action under color of state law would be a distinct element of the case not satisfied implicitly by a finding of a violation of the particular federal right.
   Lugar, 457 U.S. 922, 935 n.18.

8. Is a remedy available under Section 1983 when an alleged constitutional violation is inflicted by a private individual? What must be shown to find a private individual acted under the color of state law?
   1. In Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970), Sandra Adickes, a white school teacher, brought a Section 1983 action against S.H. Kress & Company complaining of te refusal to serve her lunch at its restaurant facilities in Hattiesburg, Mississippi as well as her subsequent arrest on a charge of vagrancy. Mrs. Adickes alleged that the company acted under the color of state law because a Kress employee and a Hattiesburg policeman reached an understanding to deny her service and have her arrested because she was in the company of black students. The Supreme Court held:

      [A] private person involved in such a conspiracy, even though not an official of the State, can be liable under § 1983. “Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents”...
      Adickes, 398 U.S. 144, 152 (1970).

   2. In West v. Atkins, 487 U.S. 42 (1988), the Court held that a private physician who was under contract to provide medical services to inmates at a state prison hospital on a part-time basis acted under color of law for purposes of § 1983 when treating a prisoner’s injury. After noting that “generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law,” id at 50, the Court found that the fact the physician was employed on a part-time contract basis did not justify a departure from this general rule.

      It is the physician’s function within the state system, not the precise terms of is employment, that determines whether his actions can fairly be attributed to the State. Whether a physician is on the state payroll or is paid by contract, the dispositive issue concerns the relationship among the State, the physician, and the prisoner. Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State’s prisoners of the means to vindicate their Eight Amendment rights. The State bore an affirmative obligation to provide adequate medical care to West; the State delegated that function to respondent Adkins; and respondent voluntarily assumed that obligation by contract.

      Nor does the fact that Doctor Atkins’ employment contract did not require him to work exclusively for the prison make him any less a state actor than if he performed those duties as a full-time, permanent member of the state prison medical staff. It is the physician’s function while working for the State, not the amount of time he spends in the performance of those duties or the fact that he may be employed by others to perform similar duties, that determines whether he is acting under color of state law.
      487 U.S. at 55-56. The Court also rejected the court of appeals’ holding that professionals do not act under color of state law when they act in their professional capacities. Id. at 52.

   3. Westcliff, population 300, is the county seat of Custer County, Colorado, area 737 square miles, population 1,400. Appellee-defendant Robert Baker, the elected county sheriff, drew a salary of $3,600 a year, and supplemented that by distributing milk products. Defendant-appellee, Lola Baker, his wife, assisted him by doing clerical work and handling telephone calls. Lola was not an officer, employee, or agent of Custer County or the State and received no compensation from either. She often accompanied her husband when he went on night patrol. She did so as a companion and not in any official capacity.

      On the evening of Sunday, July 30, the two were on patrol and came upon a car stalled on a road curve. To move the car the sheriff needed a vehicle other than the patrol car. He and his wife were on their way to get the desired vehicle when they came upon a street brawl. The sheriff broke up the disturbance. The participants moved down the street and continued fighting. The sheriff drove to the place of the renewed altercation and endeavored to stop it and to get the participants to return to their homes. After the sheriff had left the patrol car with his wife sitting in the front passenger seat, Scott Canda, one of the brawlers entered the back seat of the patrol car. Plaintiff also got in the back seat. He and Canda continued to exchange blows and profanity. The sheriff was outside the car. Some witnesses said that he was on the right side, others the back, and others the left side of the car. He was trying to quell the disturbance.

      The wife shouted to plaintiff and Canda that they stop the fighting. The sheriff was having his own troubles outside of the car. The wife struck plaintiff in the mouth with a Rol-a-Tape, a measuring instrument. The blow caused dental injuries to the plaintiff. Shortly thereafter the disturbance ended and everyone departed.

      In his complaint plaintiff alleged that the negligence of the sheriff caused his injuries and gave him a cause of action under § 1983. With regard to the wife, he said that she was deputy officer acting under color of state law, and, hence, liable under § 1983.

      Price v. Baker, 693 F.2d 952, 952-53 (10th Cir. 1982).

      Did Lola Baker act under color of state law?

9. In addition to determining under what circumstances acts of private individuals may be held to be under color of law, courts have been called upon to decide whether persons employed by the state may engage in activities that are not under color of law for purposes of Section 1983. See Douglas S. Miller, Off Duty, Off the Wall, but not Off the Hook: Section 1983 Liability for the Private Misconduct of Public Officials, 30 Akron L. Rev. 324 (1996); Larry Alexander and Paul Horton, WHOM DOES THE CONSTITUTION COMMAND (1988); Steven L. Winter, The Meaning of “Under Color of” Law, 91 Mich. L. Rev. 323 (1992); Eric H. Zagrans, "Under Color of" What Law? A Reconstructed Model of Section 1983 Liability, 71 Va. L. Rev. 499 (1985).
   1. Are injuries inflicted by an off-duty policeman “under color of law” within the meaning of Section 1983? Compare Pickrel v. City of Springfield, 45 F.3d 1115 (7th Cir. 1995) (holding that a patron of a fast-food restaurant successfully alleged that a police officer, although off-duty and working for another employer, was acting under color of state law during his employment as a security guard at the restaurant) and Revene v. Charles County Commissioners, 882 F.2d 870 (4th Cir. 1989) (holding that off-duty police officer who shot and killed two men and paralyzed a third while purportedly trying to break up a bar brawl acted under color of law) with Gibson v. Cityof Chicago,910 F.2d 1510 (7th Cir. 1990) (police officer who had been placed on medical leave as mentally unfit for duty did not act under color of state law at the time of shooting) and Hudson v. Maxey, 856 F. Supp.1223 (E.D. Mich. 1994) (holding that off-duty deputy sheriff who shot his girlfriend’s ex-boyfriend after telling ex-boyfriend his occupation did not act under color of state law).

   2. Are all harms caused while a governmental official is on duty inflicted “under color of law?” Compare Bennett v. Pippen, 74 F.3d 578 (5th Cir. 1996) (holding that rape by sheriff of suspect in domestic violence shooting investigation was action taken under color of state law) and United States v. Tarpley, 45 F.2d 806 (5th Cir. 1991) (holding that deputy sheriff who claimed to have special authority for his actions acted under color of state law when he assaulted his wife’s former lover in his home), with Martinez v. Colon, 54 F.3d 980 (1st Cir. 1995) (holding that in absence of any further indicia of state action, the use of a state-issued firearm by an officer on duty in tormenting a fellow officer is not enough to establish action under color of law), Morgan v. Tice, 862 F.2d 1495 (11th Cir. 1989) (holding that town manager in his investigation of plaintiff as private individual did not act under color of state law) and Delcambre v. Delcambre, 635 F.2d 407 (5th Cir. 1981) (per curiam) (holding that police chief’s assault on sister-in-law was not conduct taken under color of law, even though it occurred at police headquarters).

   3. In Polk County v. Dodson, 454 U.S. 312, 325 (1981), the Court held that a public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding, acting as an adversary of the state. However, the public defender may act under color of state law when performing certain administrative or investigative functions.

10. Section 1983 by no means affords the exclusive remedy for violations of federal constitutional or statutory rights. Among other federal statutes that protect civil rights are the following: 18 U.S.C. § 241 (1976) (criminal action for conspiracy to interfere with constitutional rights); 18 U.S.C. § 242 (1976) (criminal action for wilful deprivation of constitutional rights); 18 U.S.C. § 245 (criminal sanctions for wilfully interfering with persons engaging in certain activities such as voting, participating in programs receiving federal funds and serving as a grand or petit juror); Title III of Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. (1976 & Supp. 1979) (civil action for improper interception, use or disclosure of wire or oral communications); 28 U.S.C. § 1443 (providing for removal from state courts to federal district court of certain cases involving equal rights under the law); 28 >U.S.C. § 2241-55 (federal habeas corpus; providing relief to those in custody by authority of the United States, pursuant to federal law, or in violation of the Constitution or laws of the United States); 42 U.S.C. § 1973(j) (1976) (criminal and civil sanctions for violation of voting rights); 42 U.S.C. § 1981(1976) (civil action for interference with equal rights under law); 42 U.S.C. § 1982 (1976) (civil action for interference with property rights of citizens); 42 U.S.C. § 1985 (1976 & Supp. 1979) (civil action for conspiracy to interfere with constitutional rights); 42 U.S.C. § 1986 (1976) (civil action for failure to prevent conspiracy to interfere with constitutional rights); Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 et seq. (1980) (civil action for equitable relief for “egregious or frequent conditions” depriving institutionalized persons of constitutional rights pursuant to a “pattern of resistence to the full enjoyment of such rights.”); Title II of Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq. (prohibiting discrimination in public accommodations); Title VII of Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Prohibiting discrimination in employment); Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq. (prohibiting housing discrimination); Age Discrimination Act of 1975, 42 U.S.C. § 1601 et seq. (Prohibiting discrimination on the basis of age in federally assisted programs); Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1801 et seq. (1981) (civil action for improper electronic surveillance); Americans with Disabilities Act of 1990, 3 U.S.C.A. § 421 (prohibits employment discrimination on the basis of disability); Individuals with Disabilities Education Act, 20 U.S.C.A. § 1400 (ensures that all children with disabilities have available to them free appropriate public education that emphasizes special education and related services designed to meet their unique needs and to protect these childrens’ rights and the concurrent rights of their parents); Rehabilitation Act of 1973, 29 U.S.C.A. § 720 et. seq. (requires federal contractors to engage in affirmative action to hire handicapped individuals); Equal Pay Act, 29 U.S.C.A. § 206 (amended Section 6 of the FLSA); 1986 Immigration Reform & Control Act, 8 U.S.C.A. § 1324b (a) (extended employment discrimination protection to illegal aliens).Introduction to the Standard of Culpability in Section 1983 Actions

B. Standard of Culpability

1. Introduction to the Standard of Culpability in Section 1983 Actions

1. In Monroe v. Pape, 365 U.S. 167 (1961), the conduct that violated the United States Constitution also contravened state law. Does the federal government have any interest in intervening in this situation? How does the Monroe Court justify extending Section 1983 to such actions? What would be the effect of limiting Section 1983 to actions alleging unconstitutional conduct that was authorized by state law? See Pierson v. Ray, 386 U.S. 547 (1967).

2. As a result of Monroe v. Pape, does Section 1983 afford a federal cause of action in every situation where a state actor causes injury?
   1. Consider whether the following situations are actionable under Section 1983:
      1. A city policeman, while on routine patrol, negligently strikes a pedestrian with his patrol car. The pedestrian files a Section 1983 action against the officer alleging a deprivation of liberty and property without due process of law inflicted under color of state law.

      2. An inmate of a state prison slips on greasy stairs in the prison and injures his back. The prisoner sues under Section 1983, alleging cruel and unusual punishment and a deprivation of liberty and property without due process of law caused by persons acting under color of state law.

      3. A school board terminates the contract of a high school football coach. The coach files a Section 1983 action alleging that the board, acting under color of law, deprived him of property without due process of law.

   2. “[S]ection 1983 has profoundly disturbed those analysts concerned about maintaining a ‘proper balance’ between the national and state governments. The statute has increasingly been used as a device for bringing federal court suits which resemble state tort actions against state and local officials. Under the rubric of the due process or cruel and unusual punishment clauses, almost any common law tort can be converted into a constitutional violation and thereby made the basis of a section 1983 action.”

      Developments in the Law - Section 1983 and Federalism, 90 Harv. L. Rev. 1133, 1172-73 (1977) (notes omitted).

      While federal law obviously should not totally occupy the entire field of state tort law, how can the possibilities described above be avoided? Does the language of the statute provide any limits on the reach of federal action? Did the Monroe Court make this result inevitable by directing that, “[s]ection 1979 [42 U.S.C. § 1983] should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” 365 U.S. at 187. Are there any violations of state tort law that would not likewise constitute an invasion of the Fourteenth Amendment? See Ingraham v. Wright, 430 U.S. 651 (1977); Estelle v. Gamble, 429 U.S. 97 (1976); Paul v. Davis, 424 U.S. 693 (1976).

3. In Collins v. City of Harker, 503 U.S. 115 (1992), the widow of a employee of the city sanitation department filed an action under Section 1983 to recover damages for her husband’s death as a result of asphyxia suffered when he entered a manhole to unstop a sewer line. Plaintiff sued the municipality, alleging that it had neglected to properly train its employees about the perils of working with sewer lines and had failed to provide suitable safety equipment and warnings.

   The court of appeals affirmed dismissal of the complaint, reasoning that plaintiff had failed to establish that the city’s action was taken in its capacity as a governing authority as opposed to in its role as an employer. The court construed Section 1983 to demand that in addition to proving a constitutional deprivation, plaintiff must establish abuse of governmental power.

   The Supreme Court reversed this aspect of the court of appeals’ opinion:

   The Court of Appeals’ analysis rests largely on the fact that the city had, through allegedly tortious conduct, harmed one of its employees rather than an ordinary citizen over whom it exercised governmental power. The employment relationship, however, is not of controlling significance. On the one hand, if the city had pursued a policy of equally deliberate indifference to the safety of pedestrians that resulted in a fatal injury to one who inadvertently stepped into an open manhole, the Court of Appeals’ holding would not speak to this situation at all, although it would seem that a claim by such a pedestrian should be analyzed in a similar manner as the claim by this petitioner. On the other hand, a logical application of the holding might also bar potentially meritorious claims by employees if, for example, the city had given an employee a particularly dangerous assignment in retaliation for a political speech, cf. St. Louis v. Praprotnik, 485 U.S. 112 (1988), or because of his or her gender, cf. Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). The First Amendment, the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and other provisions of the Federal Constitution afford protection to employees who serve the government as well as to those who are served by them, and § 1983 provides a cause of action for all citizens injured by an abridgement of those protections. Neither the fact that the petitioner’s decedent was a government employee nor the characterization of the city’s deliberate indifference to his safety as something other than an “abuse of governmental power” is a sufficient reason for refusing to entertain petitioner’s federal claim under § 1983.

   503 U.S. at 119-20.

4. One suggested factor distinguishing injuries redressable through state tort law from constitutional harm cognizable under Section 1983 has been the state-of-mind or degree of culpability of the state actor causing the injury. Is this a proper distinction? If not, how can Section 1983 be limited to avoid federalizing state tort law?
   1. As a matter of policy, what degree of defendant’s culpability should a person deprived of a constitutional right have to prove to recover compensatory damages? Only that the defendant violated the Constitution? A constitutional violation and defendant’s negligence? A constitutional violation and defendant’s recklessness? A constitutional violation and defendant’s specific intent to invade victim’s constitutional rights?

   2. Under the common law, what degree of culpability must be proven to recover compensatory damages for tortious actions of private actors? Should the standard of culpability differ for obtaining an award for constitutional violations caused by government actors?

5. What is the standard of culpability under Section 1983 established by Monroe v. Pape? What authority does the Monroe Court cite for its holding that Section 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions”? 365 U.S. at 187.

   In Black v. Bayer, 672 F.2d 309, 314-15 (3rd Cir.) cert. denied, 459 U.S. 916 (1982), the court of appeals, considering the Section 1983 liability of private attorneys appointed to represent defendants in criminal cases, observed:

   To understand the current teachings of the Supreme Court relating to...federal § 1983 cases, it is helpful to review briefly the development of relevant precepts. The Court has demonstrated much agility in weaving back and forth among concepts of constitutional deprivation, statutory construction, and state tort liability. Although students of jurisprudence may shudder at the promiscuous mingling of federal constitutional protection notions--derived from the text of a written federal Constitution--with precepts of tort liability--generally the product of evolving state court decisions strongly influenced by the American Law Institute’s Restatement of the Law--it will serve no useful purpose at this late hour for an inferior court to enter the lists on this formidable issue. The Supreme Court has spoken. The Court has cited no authority for generously mixing tort and constitutional law in interpreting § 1983, but it has stated its position vigorously and repeatedly.

Parratt v. Taylor

Justice Rehnquist delivered the opinion of the Court.

The respondent is an inmate at the Nebraska Penal and Correctional Complex who ordered by mail certain hobby materials valued at $23.50. The hobby materials were lost and respondent brought suit under 42 U. S. C. § 1983 to recover their value. At first blush one might well inquire why respondent brought an action in federal court to recover damages of such a small amount for negligent loss of property, but because 28 U. S. C. § 1343, the predicate for the jurisdiction of the United States District Court, contains no minimum dollar limitation, he was authorized by Congress to bring his action under that section if he met its requirements and if he stated a claim for relief under 42 U. S. C. § 1983. Respondent claimed that his property was negligently lost by prison officials in violation of his rights under the Fourteenth Amendment to the United States Constitution. More specifically, he claimed that he had been deprived of property without due process of law.¹

The United States District Court for the District of Nebraska entered summary judgment for respondent, and the United States Court of Appeals for the Eighth Circuit affirmed in a per curiam order. 620 F.2d 307 (1980). We granted certiorari. 449 U.S. 917 (1980).

I

The facts underlying this dispute are not seriously contested. Respondent paid for the hobby materials he ordered with two drafts drawn on his inmate account by prison officials. The packages arrived at the complex and were signed for by two employees who worked in the prison hobby center. One of the employees was a civilian and the other was an inmate. Respondent was in segregation at the time and was not permitted to have the hobby materials. Normal prison procedures for the handling of mail packages is that upon arrival they are either delivered to the prisoner who signs a receipt for the package or the prisoner is notified to pick up the package and to sign a receipt. No inmate other than the one to whom the package is addressed is supposed to sign for a package. After being released from segregation, respondent contacted several prison officials regarding the whereabouts of his packages. The officials were never able to locate the packages or to determine what caused their disappearance.

In 1976, respondent commenced this action against the petitioners, the Warden and Hobby Manager of the prison, in the District Court seeking to recover the value of the hobby materials which he claimed had been lost as a result of the petitioners' negligence. Respondent alleged that petitioners' conduct deprived him of property without due process of law in violation of the Fourteenth Amendment of the United States Constitution. Respondent chose to proceed in the United States District Court under 28 U. S. C. § 1343 and 42 U. S. C. § 1983, even though the State of Nebraska had a tort claims procedure which provided a remedy to persons who suffered tortious losses at the hands of the State.

On October 25, 1978, the District Court granted respondent's motion for summary judgment. The District Court ruled that negligent actions by state officials can be a basis for an action under 42 U. S. C. § 1983; petitioners were not immune from damages actions of this kind; and the deprivation of the hobby kit "[implicated] due process rights." The District Court explained:

"This is not a situation where prison officials confiscated contraband. The negligence of the officials in failing to follow their own policies concerning the distribution of mail resulted in a loss of personal property for [respondent], which loss should not go without redress."
App. to Pet. for Cert. 9.

While we have twice granted certiorari in cases to decide whether mere negligence will support a claim for relief under § 1983, see Procunier v. Navarette, 434 U.S. 555 (1978), and Baker v. McCollan, 443 U.S. 137 (1979), we have in each of those cases found it unnecessary to decide the issue. In Procunier, supra, we held that regardless of whether the § 1983 complaint framed in terms of negligence stated a claim for relief, the defendants would clearly have been entitled to qualified immunity and therefore not liable for damages. In Baker, supra, we held that no deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States had occurred, and therefore it was unnecessary to decide whether mere negligence on the part of the actor would have rendered him liable had there been such a deprivation. These two decisions, however, have not aided the various Courts of Appeals and District Courts in their struggle to determine the correct manner in which to analyze claims such as the present one which allege facts that are commonly thought to state a claim for a common-law tort normally dealt with by state courts, but instead are couched in terms of a constitutional deprivation and relief is sought under § 1983. The diversity in approaches is legion....We, therefore, once more put our shoulder to the wheel hoping to be of greater assistance to courts confronting such a fact situation than it appears we have been in the past.

Nothing in the language of § 1983 or its legislative history limits the statute solely to intentional deprivations of constitutional rights. In Baker v. McCollan, supra, we suggested that simply because a wrong was negligently as opposed to intentionally committed did not foreclose the possibility that such action could be brought under § 1983. We explained:

" [The] question whether an allegation of simple negligence is sufficient to state a cause of action under § 1983 is more elusive than it appears at first blush. It may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action."
443 U.S., at 139-140.

Section 1983, unlike its criminal counterpart, 18 U. S. C. § 242, has never been found by this Court to contain a state-of-mind requirement.² The Court recognized as much in Monroe v. Pape, 365 U.S. 167 (1961), when we explained after extensively reviewing the legislative history of § 1983, that

"[it] is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies."
Id., at 180.

In distinguishing the criminal counterpart which had earlier been at issue in Screws v. United States, 325 U.S. 91 (1945), the Monroe Court stated:

"In the Screws Screws case we dealt with a statute that imposed criminal penalties for acts 'willfully' done. We construed that word in its setting to mean the doing of an act with 'a specific intent to deprive a person of a federal right.' 325 U.S., at 103. We do not think that gloss should be put on [§ 1983] which we have here. The word 'willfully' does not appear in [§ 1983]. Moreover, [§ 1983] provides a civil remedy, while in the Screws case we dealt with a criminal law challenged on the grounds of vagueness. [Section 1983] should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions."
365 U.S., at 187.

Both Baker v. Mcollan and Monroe v. Pape suggest that § 1983 affords a "civil remedy" for deprivations of federally protected rights caused by persons acting under color of state law without any express requirement of a particular state of mind. Accordingly, in any § 1983 action the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.

III

Since this Court's decision in Monroe v. Pape, supra, it can no longer be questioned that the alleged conduct by the petitioners in this case satisfies the "under color of state law" requirement. Petitioners were, after all, state employees in positions of considerable authority. They do not seriously contend otherwise. Our inquiry, therefore, must turn to the second requirement -- whether respondent has been deprived of any right, privilege, or immunity secured by the Constitution or laws of the United States.

The only deprivation respondent alleges in his complaint is that "his rights under the Fourteenth Amendment of the Constitution of the United States were violated. That he was deprived of his property and Due Process of Law." App. 8. As such, respondent's claims differ from the claims which were before us in Monroe v. Pape, supra, which involved violations of the Fourth Amendment, and the claims presented in Estelle v. Gamble, 429 U.S. 97 (1976), which involved alleged violations of the Eighth Amendment. Both of these Amendments have been held applicable to the States by virtue of the adoption of the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643 (1961); Robinson v. California, 370 U.S. 660 (1962). Respondent here refers to no other right, privilege, or immunity secured by the Constitution or federal laws other than the Due Process Clause of the Fourteenth Amendment simpliciter. The pertinent text of the Fourteenth Amendment provides:

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (Emphasis supplied.)

Unquestionably, respondent's claim satisfies three prerequisites of a valid due process claim: the petitioners acted under color of state law; the hobby kit falls within the definition of property; and the alleged loss, even though negligently caused, amounted to a deprivation.³ Standing alone, however, these three elements do not establish a violation of the Fourteenth Amendment. Nothing in that Amendment protects against all deprivations of life, liberty, or property by the State. The Fourteenth Amendment protects only against deprivations "without due process of law." Baker v. McCollan, 443 U.S., at 145. Our inquiry therefore must focus on whether the respondent has suffered a deprivation of property without due process of law. In particular, we must decide whether the tort remedies which the State of Nebraska provides as a means of redress for property deprivations satisfy the requirements of procedural due process.

This Court has never directly addressed the question of what process is due a person when an employee of a State negligently takes his property. In some cases this Court has held that due process requires a predeprivation hearing before the State interferes with any liberty or property interest enjoyed by its citizens. In most of these cases, however, the deprivation of property was pursuant to some established state procedure and "process" could be offered before any actual deprivation took place. For example, in Mullane v.Central Hanover Trust Co. , 339 U.S. 306 (1950), the Court struck down on due process grounds a New York statute that allowed a trust company, when it sought a judicial settlement of its trust accounts, to give notice by publication to all beneficiaries even if the whereabouts of the beneficiaries were known. The Court held that personal notice in such situations was required and stated that "when notice is a person's due, process which is a mere gesture is not due process." Id., at 315. More recently, in Bell v. Burson, 402 U.S. 535 (1971), we reviewed a state statute which provided for the taking of the driver's license and registration of an uninsured motorist who had been involved in an accident. We recognized that a driver's license is often involved in the livelihood of a person and as such could not be summarily taken without a prior hearing. In Fuentes v. Shevin, 407 U.S. 67 (1972), we struck down the Florida prejudgment replevin statute which allowed secured creditors to obtain writs in ex parte proceedings. We held that due process required a prior hearing before the State authorized its agents to seize property in a debtor's possession. See also Boddie v. Connecticut, 401 U.S. 371 (1971); Goldberg v. KellyGoldberg v. Kelly, 397 U.S. 254 (1970); and Snidach v. Family Finance Corp., 395 U.S. 337 (1969). In all these cases, deprivations of property were authorized by an established state procedure and due process was held to require predeprivation notice and hearing in order to serve as a check on the possibility that a wrongful deprivation would occur.

We have, however, recognized that postdeprivation remedies made available by the State can satisfy the Due Process Clause. In such cases, the normal predeprivation notice and opportunity to be heard is pretermitted if the State provides a postdeprivation remedy. In North American Cold Storage Co. v. Chicago, 211 U.S. 306 (1908), we upheld the right of a State to seize and destroy unwholesome food without a preseizure hearing. The possibility of erroneous destruction of property was outweighed by the fact that the public health emergency justified immediate action and the owner of the property could recover his damages in an action at law after the incident. In Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 (1950), we upheld under the Fifth Amendment Due Process Clause the summary seizure and destruction of drugs without a preseizure hearing. Similarly, in Fahey v. Mallonee, 332 U.S. 245 (1947), we recognized that the protection of the public interest against economic harm can justify the immediate seizure of property without a prior hearing when substantial questions are raised about the competence of a bank's management. In Bowles v. Willingham321 U.S. 503 (1944), we upheld in the face of a due process challenge the authority of the Administrator of the Office of Price Administration to issue rent control orders without providing a hearing to landlords before the order or regulation fixing rents became effective. See also Corn Exchange Bank v. Coler, 280 U.S. 218 (1930); McKay v. McInnes, 279 U.S. 820 (1929);,Coffin Brothers & Co. v. Bennett 277 U.S. 29 (1928); and Ownbey v. Morgan, 256 U.S. 94 (1921). These cases recognize that either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process, when coupled with the availability of some meaningful means by which to assess the propriety of the State's action at some time after the initial taking, can satisfy the requirements of procedural due process. As we stated in Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974):

"Petitioner asserts that his right to a hearing before his possession is in any way disturbed is nonetheless mandated by a long line of cases in this Court, culminating in Sniadach v. Family Finance Corp., 395 U.S. 337 (1969), and Fuentes v. Shevin, 407 U.S. 67 (1972). The pre-Sniadach cases are said by peitioner to hold that 'the opportunity to be heard must precede any actual deprivation of private property.' Their import, however, is not so clear as petitioner would have it: they merely stand for the proposition that a hearing must be had before one is finally deprived of his property and do not deal at all with the need for a pretermination hearing where a full and immediate post-termination hearing is provided. The usual rule has been '[where] only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for ultimate judicial determination of liability is adequate.' Phillips v. Commissioner, 283 U.S. 589, 596-597 (1931)."
Id., at 611 (footnote omitted).

A case remarkably similar to the present one is Bonner v. Coughlin, 517 F.2d 1311 (CA7 1975), modified en banc, 545 F.2d 565 (1976), cert. denied, 435 U.S. 932 (1978). There, a prisoner alleged that prison officials "made it possible by leaving the door of Plaintiff's cell open, for others without authority to remove Plaintiff's trial transcript from the cell." 517 F.2d, at 1318. The question presented was whether negligence may support a recovery under § 1983. Then Judge Stevens, writing for a panel of the Court of Appeals for the Seventh Circuit, recognized that the question that had to be decided was "whether it can be said that the deprivation was 'without due process of law.'" Ibid. He concluded:

"It seems to us that there is an important difference between a challenge to an established state procedure as lacking in due process and a property damage claim arising out of the misconduct of state officers. In the former situation the facts satisfy the most literal reading of the Fourteenth Amendment's prohibition against 'State' deprivations of property; in the latter situation, however, even though there is action 'under color of' state law sufficient to bring the amendment into play, the state action is not necessarily complete. For in a case such as this the law of Illinois provides, in substance, that the plaintiff is entitled to be made whole for any loss of property occasioned by the unauthorized conduct of the prison guards. We may reasonably conclude, therefore, that the existence of an adequate state remedy to redress property damage inflicted by state officers avoids the conclusion that there has been any constitutional deprivation of property without due process of law within the meaning of the Fourteenth Amendment."
Id., at 1319.

We believe that the analysis recited above in Bonner is the proper manner in which to approach a case such as this. This analysis is also quite consistent with the approach taken by this Court in Ingraham v. Wright, 430 U.S. 651 (1977), were the Court was confronted with the claim that corporal punishment in public schools violated due process. Arguably, the facts presented to the Court in Ingraham were more egregious than those presented here inasmuch as the Court was faced with both an intentional act (as opposed to negligent conduct) and a deprivation of liberty. However, we reasoned:

"'At some point the benefit of an additional safeguard to the individual affected . . . and to society in terms of increased assurance that the action is just, may be outweighed by the cost.' Mathews v. Eldridge, 424 U.S., at 348. We think that point has been reached in this case. In view of the low incidence of abuse, the openness of our schools, and the common-law safeguards that already exist, the risk of error that may result in violation of a schoolchild's substantive rights can only be regarded as minimal. Imposing additional administrative safeguards as a constitutional requirement might reduce that risk marginally, but would also entail a significant intrusion into an area of primary educational responsibility."
Id., at 682. (Emphasis supplied.)

IV

Application of the principles recited above to this case leads us to conclude the respondent has not alleged a violation of the Due Process Clause of the Fourteenth Amendment. Although he has been deprived of property under color of state law, the deprivation did not occur as a result of some established state procedure. Indeed, the deprivation occurred as a result of the unauthorized failure of agents of the State to follow established state procedure. There is no contention that the procedures themselves are inadequate nor is there any contention that it was practicable for the State to provide a predeprivation hearing. Moreover, the State of Nebraska has provided respondent with the means by which he can receive redress for the deprivation. The State provides a remedy to persons who believe they have suffered a tortious loss at the hands of the State. See Neb. Rev. Stat. § 81-8,209 et seq. (1976). Through this tort claims procedure the State hears and pays claims of prisoners housed in its penal institutions. This procedure was in existence at the time of the loss here in question but respondent did not use it. It is argued that the State does not adequately protect the respondent's interests because it provides only for an action against the State as opposed to its individual employees, it contains no provisions for punitive damages, and there is no right to a trial by jury. Although the state remedies may not provide the respondent with all the relief which may have been available if he could have proceeded under § 1983, that does not mean that the state remedies are not adequate to satisfy the requirements of due process. The remedies provided could have fully compensated the respondent for the property loss he suffered, and we hold that they are sufficient to satisfy the requirements of due process.

Our decision today is fully consistent with our prior cases. To accept respondent's argument that the conduct of the state officials in this case constituted a violation of the Fourteenth Amendment would almost necessarily result in turning every alleged injury which may have been inflicted by a state official acting under "color of law" into a violation of the Fourteenth Amendment cognizable under § 1983. It is hard to perceive any logical stopping place to such a line of reasoning. Presumably, under this rationale any party who is involved in nothing more than an automobile accident with a state official could allege a constitutional violation under § 1983. Such reasoning "would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States." Paul v. Davis, 424 U.S. 693, 701 (1976). We do not think that the drafters of the Fourteenth Amendment intended the Amendment to play such a role in our society.

Accordingly, the judgment of the Court of Appeals is

Reversed.

Justice Blackmun, concurring.

While I join the Court's opinion in this case, I write separately to emphasize my understanding of its narrow reach. This suit concerns the deprivation only of property and was brought only against supervisory personnel, whose simple "negligence" was assumed but, on this record, not actually proved. I do not read the Court's opinion as applicable to a case concerning deprivation of life or of liberty. Cf. Moore v. East Cleveland, 431 U.S. 494 (1977). I also do not understand the Court to intimate that the sole content of the Due Process Clause is procedural regularity. I continue to believe that there are certain governmental actions that, even if undertaken with a full panoply of procedural protection, are, in and of themselves, antithetical to fundamental notions of due process. See, e. g., Boddie v. Connecticut, 401 U.S. 371 (1971); Roe v. Wade, 410 U.S. 113 (1973).

Most importantly, I do not understand the Court to suggest that the provision of "postdeprivation remedies," ante, at 538, within a state system would cure the unconstitutional nature of a state official's intentional act that deprives a person of property. While the "random and unauthorized" nature of negligent acts by state employees makes it difficult for the State to "provide a meaningful hearing before the deprivation takes place," ante, at 541, it is rare that the same can be said of intentional acts by state employees. When it is possible for a State to institute procedures to contain and direct the intentional actions of its officials, it should be required, as a matter of due process, to do so. See Snidach v. Family Finance Corp., 395 U.S. 337 (1969); Fuentes v. Shevin, 407 U.S. 67 (1972); Goldberg v. Kelly, 397 U.S. 254 (1970). In the majority of such cases, the failure to provide adequate process prior to inflicting the harm would violate the Due Process Clause. The mere availability of a subsequent tort remedy before tribunals of the same authority that, through its employees, deliberately inflicted the harm complained of, might well not provide the due process of which the Fourteenth Amendment speaks.

Justice Powell, concurring in the result.

This case presents the question whether a state prisoner may sue to recover damages under 42 U. S. C. § 1983, alleging that a violation of the Due Process Clause of the Fourteenth Amendment occurred when two shipments mailed to him were lost due to the negligence of the prison's warden and "hobby manager." Unlike the Court, I do not believe that such negligent acts by state officials constitute a deprivation of property within the meaning of the Fourteenth Amendment, regardless of whatever subsequent procedure a State may or may not provide. I therefore concur only in the result.

A "deprivation" connotes an intentional act denying something to someone, or, at the very least, a deliberate decision not to act to prevent a loss.⁴ The most reasonable interpretation of the Fourteenth Amendment would limit due process claims to such active deprivations. This is the view adopted by an overwhelming number of lower courts, which have rejected d⁵ue process claims premised on negligent acts without inquiring into the existence or sufficiency of the subsequent procedures provided by the States. In addition, such a rule would avoid trivializing the right of action provided in § 1983. That provision was enacted to deter real abuses by state officials in the exercise of governmental powers. It would make no sense to open the federal courts to lawsuits where there has been no affirmative abuse of power, merely a negligent deed by one who happens to be acting under color of state law. See n. 12, infra.⁷

Such an approach has another advantage; it avoids a somewhat disturbing implication in the Court's opinion concerning the scope of due process guarantees. The Court analyzes this case solely in terms of the procedural rights created by the Due Process Clause. Finding state procedures adequate, it suggests that no further analysis is required of more substantive limitations on state action located in this Clause. Cf. Paul v. Davis, supra, at 712-714 (assessing the claim presented in terms of the "substantive aspects of the Fourteenth Amendment"); Ingraham v. Wright, 430 U.S. 651, 679, n. 47 (1977) (leaving open the question whether "corporal punishment of a public school child may give rise to an independent federal cause of action to vindicate substantive rights under the Due Process Clause").

The Due Process Clause imposes substantive limitations on state action, and under proper The Due Process Clause imposes substantive limitations on state action, and under proper circumstances¹⁰ these limitations may extend to intentional and malicious deprivations of liberty¹¹ and property,¹² even where compensation is available under state law. The Court, however, fails altogether to discuss the possibility that the kind of state action alleged here constitutes a violation of the substantive guarantees of the Due Process Clause. As I do not consider a negligent act the kind of deprivation that implicates the procedural guarantees of the Due Process Clause, I certainly would not view negligent acts as violative of these substantive guarantees. But the Court concludes that there has been such a deprivation. And yet it avoids entirely the question whether the Due Process Clause may place substantive limitations on this form of governmental conduct.

In sum, it seems evident that the reasoning and decision of the Court today, even if viewed as compatible with our precedents, create new uncertainties as well as invitations to litigate under a statute that already has burst its historical bounds.¹³

Justice Marshall, concurring in part and dissenting in part.

I join the opinion of the Court insofar as it holds that negligent conduct by persons acting under color of state law may be actionable under 42 U. S. C. § 1983. Ante, at 534-535. I also agree with the majority that in cases involving claims of negligent deprivation of property without due process of law, the availability of an adequate postdeprivation cause of action for damages under state law may preclude a finding of a violation of the Fourteenth Amendment. I part company with the majority, however, over its conclusion that there was an adequate state-law remedy available to respondent in this case. My disagreement with the majority is not because of any shortcomings in the Nebraska tort claims procedure.¹ Rather, my problem is with the majority's application of its legal analysis to the facts of this case.

It is significant, in my view, that respondent is a state prisoner whose access to information about his legal rights is necessarily limited by his confinement. Furthermore, there is no claim that either petitioners or any other officials informed respondent that he could seek redress for the alleged deprivation of his property by filing an action under the Nebraska tort claims procedure.² This apparent failure takes on additional significance in light of the fact that respondent pursued his complaint about the missing hobby kit through the prison's grievance procedure. In cases such as this, I believe prison officials have an affirmative obligation to inform a prisoner who claims that he is aggrieved by official action about the remedies available under state law. If they fail to do so, then they should not be permitted to rely on the existence of such remedies as adequate alternatives to a § 1983 action for wrongful deprivation of property. Since these prison officials do not represent that respondent was informed about his rights under state law, I cannot join in the judgment of the Court in this case.

Thus, although I agree with much of the majority's reasoning, I would affirm the judgment of the Court of Appeals.

Parratt v. Taylor Transcript

Parratt v. Taylor Briefs

Notes on Parratt v. Taylor

1. What is the standard of culpability in Section 1983 actions according to Parratt?

   The Supreme Court had previously granted certiorari in Baker v. McCollan, 443 U.S. 137 (1979), to consider whether negligent conduct is actionable under Section 1983. Baker arose out of the arrest and confinement of Linnie McCollan pursuant to a warrant intended for his brother Leonard. Linnie brought a Section 1983 action alleging that the sheriff’s negligent failure to establish proper identification procedures deprived him of his liberty without due process of law. The Supreme Court, however, found that persons arrested pursuant to a valid warrant are not entitled to a separate judicial determination of probable cause to detain them pending trial. Because McCollan had not suffered an invasion of his Fourteenth Amendment rights, the Court concluded that it had no cause to determine the degree of culpability necessary to establish liability under Section 1983.

   Can Parratt be reconciled with Baker v. McCollan? Is the Court’s ruling on the culpability issue in Parratt dictum? But see Wood v. Strickland, 420 U.S. 308, 314 (1975) ("[T]he immunity question involves the construction of a federal statute, and our practice is to deal with possibly dispositive statutory issues before questions turning on the construction of the Constitution."); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345-48 (1936)(Brandeis, J., concurring).

2. As Parratt v. Taylor exemplifies, most of the debate surrounding the standard of culpability under Section 1983 focused upon whether the statute allows recovery for negligent, as opposed to reckless or intentional, deprivations of constitutional rights. The courts generally did not address the equally important question of whether Section 1983 imposes "strict liability" for invasions of rights protected by the Constitution.
   1. Does Parratt require that, in addition to proving a constitutional violation caused by a person acting under color of state law, a Section 1983 plaintiff must prove that the government official acted negligently?

   2. What standard of culpability is imposed by the language of 42 U.S.C. § 1983? See Gomez v. Toledo , 446 U.S. 635, 640 (1980)("By the plain terms of § 1983, two--and only two--allegations are required in order to state a claim under the statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who deprived him of that right acted under color of state or territorial law.").

   3. What standard of culpability is indicated by the following excerpts from the legislative history of Section 1983?

   1. Senator Edmunds, manager of the bill in the Senate, stated that the Act was "so very simple and really reenacting the Constitution." Cong. Globe, 42d Cong., 1st Sess., 569 (1871) [cited in Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 685 (1978)].

   2. Representative Bingham declared the bill’s purpose to be

      The enforcement...of the Constitution on behalf of every individual citizen of the Republic...to the extent of the rights guaranteed to him by the Constitution.
      Globe App. 81 [cited in Monell, 436 U.S. 658, 685 n.45].

   3. Senator Thurman, opposing the bill, remarked:

      It authorizes any person who is deprived of any right, privilege, or immunity secured to him by the Constitution of the United States, to bring an action against the wrongdoer in the Federal Courts, and without any limit whatsoever as to the amount in controversy. The deprivation may be of the slightest conceivable character...

      [T]here is no limitation whatsoever upon the terms that are employed (in the bill), and they are as comprehensive as can be used.

      Globe App. at 216-217 [cited in Monell, 436 U.S. 658, 685 n.45 and in Monroe v. Pape ].

   4. Representative Shellenbarger described how the courts should interpret § 1:

      The Act is remedial, and in aid of the preservation of human liberty and human rights. All statutes and constitutional provisions authorizing such statutes are liberally and beneficently construed. It would be most strange and, in civilized law, monstrous were this not the rule of interpretation. As has been again and again decided by your own Supreme Court of the United States, and everywhere else where there is wise judicial interpretation, the largest latitude consistent with the words employed is uniformly given in construing such statutes and constitutional provisions as are meant to protect and defend and give remedies for their wrongs to all the people...Chief Justice Jay and also Story say:

      "Where a power is remedial in its nature there is much reason to contend that it ought to be construed liberally, and it is generally adopted in the interpretation of laws." 1 Story on Constitution, sec. 429.

   
   Globe App., at 68 [cited in Monell , 436 U.S. at 684].

3. How does the Supreme Court in Parratt distinguish injuries inflicted by state officials that are to be redressed by state tort law from violations of the Fourteenth Amendment cognizable under Section 1983? Has the Court pre-empted Section 1983 actions for every constitutional infringement whenever there is an adequate post-deprivation state remedy?
   1. Justice Blackmun’s concurrence in Parratt emphasized the "narrow reach" of the Court’s opinion, including the limiting fact that the "suit concerns the deprivation only of property." 451 U.S. at 545. The lower federal courts subsequently divided over the issue of whether the availability of an adequate state post-deprivation remedy affords due process of law for deprivations of liberty as opposed to property. Compare Thibodeaux v. Bordelon, 740 F.2d 329, 337-38 (5th Cir. 1984) with Wilson v. Beebe , 770 F.2d 578, 584 (6th Cir. 1985)(en banc).

      In Zinermon v. Burch, 494 U.S. 113 (1990) Justice Blackmun authored the majority opinion holding the Parratt analysis equally applicable to claimed deprivations of liberty:

      It is true that Parratt...concerned deprivations of property. It is also true that Burch’s interest in avoiding six months confinement is of an order different from inmate Parratt’s interest in mail-order materials valued at $23.50. But the reasoning of Parratt...emphasizes the State’s inability to provide pre-deprivation process because of the random and unpredictable nature of the deprivation, not the fact that only property losses were at stake. In situations where the State feasibly can provide a predeprivation hearing before taking property, it generally must do so regardless of the adequacy of a postdeprivation tort remedy to compensate for the taking. See Loudermill, 470 U.S., at 542, 105 S. Ct., at 1493; Memphis Light, 436 U.S. at 18, 98 S. Ct., at 1564; Fuentes, 407 U.S., at 80-84, 92 S. Ct., at 1018. Conversely, in situations where a predeprivation hearing is unduly burdensome in proportion to the liberty interest at stake, see Ingraham, 430 U.S., at 682, 97 S. Ct., at 1418, or where the state is truly unable to anticipate and prevent a random deprivation of a liberty interest, postdeprivation remedies might satisfy due process. Thus, the fact that a deprivation of liberty is involved in this case does not automatically preclude application of the Parratt rule.
      Id. at 132.

   2. The Parratt Court was confronted with a negligent, unintentional deprivation of property. In Hudson v. Palmer , 468 U.S. 517 (1984), the Court held that the intentional destruction of a prisoner’s personal property in the course of a cell shakedown similarly does not violate the Fourteenth Amendment if an adequate post-deprivation state remedy exists.

      The underlying rationale of Parratt is that when deprivations of property are effected through random and unauthorized conduct of a state employee, pre-deprivation procedures are simply "impracticable" since the state cannot know when such deprivations will occur. We can discern no logical distinction between negligent and intentional deprivations of property insofar as the "practicability" of affording pre-deprivation process is concerned. The State can no more anticipate and control in advance the random and unauthorized intentional conduct of its employees than it can anticipate similar negligent conduct. Arguably, intentional acts are even more difficult to anticipate because one bent on intentionally depriving a person of his property might well take affirmative steps to avoid signaling his intent.
      Hudson v. Palmer, 468 U.S. 517, 533 (1984).

   3. Although the Supreme Court has extended Parratt to random and unauthorized intentional acts of state employees, it has also held that a person deprived of property pursuant to an "established state procedure" is not relegated to post-deprivation state remedies. Logan v. Zimmerman Brush Co. , 455 U.S. 422 (1982).

      Laverne Logan, allegedly fired as a result of a physical disability, filed a charge of discrimination with the Illinois Fair Employment Practices Commission in compliance with the Illinois Fair Employment Practices Act. The Commission, however, inadvertently scheduled a required fact-finding conference five days after the statute’s prescribed 120 day time limit. Upon motion by the employer, the discrimination charge was dismissed because of the Commission’s failure to timely convene the conference. Logan challenged the dismissal of the charge as a deprivation of a protected property interest in violation of the Due Process Clause of the Fourteenth Amendment. Id. at 428.

      The employer argued that even if Logan had been deprived of a property right, under Parratt due process was afforded by a post-deprivation state tort action under the Illinois Court of Claims Act. The Supreme Court rejected the employer’s contention, reasoning as follows:

      This argument misses Parratt’s point. In Parratt, the Court emphasized that it was dealing with "a tortious loss of...property as a result of a random and unauthorized act by a state employee...not a result of some established state procedure." 451 U.S., at 541, 101 S. Ct., at 1915. Here, in contrast, it is the state system itself that destroys a complainant’s property interest, by operation of law, whenever the Commission fails to convene a timely conference - whether the Commission’s action is taken through negligence, maliciousness, or otherwise. Parratt was not designed to reach such a situation. See id., at 545, 101 S. Ct., at 1981 (second concurring opinion). Unlike the complainant in Parratt, Logan is challenging not the Commission’s error, but the "established state procedure" that destroys his entitlement without according him proper procedural safeguards.
      451 U.S. at 435-36.

   4. The Court further circumscribed the reach of Parratt in Zinermon v. Burch, 494 U.S. 113 (1990), a Section 1983 action alleging a deprivation of liberty arising out of respondent’s admission to a state hospital for treatment of mental illness. Burch did not attack the constitutionality of the Florida statutes that authorized his admission to the hospital, consequently he could not avoid the dictates of Parratt by claiming his deprivation was caused by an established state procedure. Instead, Burch averred that his admission as a voluntary patient contravened the Florida statutory scheme because the officials involved in his admission and treatment knew or should have known he was incompetent to make an informed decision and therefore should have afforded Burch the procedural safeguards provided by the state’s involuntary placement protocol.

      In a 5-4 opinion, the Supreme Court held that Burch was not relegated to state post-deprivation remedies, finding Parratt distinguishable on three grounds:

      First, petitioners cannot claim that the deprivation of Burch’s liberty was unpredictable.

      * * * * *

      Second, we cannot say that predeprivation process was impossible here.

      * * * * *

      Third, petitioners cannot characterize their conduct as "unauthorized" in the sense the term is used in Parratt and Hudson . The State delegated to them the power and authority to effect the very deprivation complained of here, Burch’s confinement in a mental hospital, and also delegated to them the concomitant duty to initiate the procedural safeguards set up by state law to guard against unlawful confinement. In Parratt and Hudson , the state employees had no similar broad authority to deprive prisoners of their personal property, and no similar duty to initiate (for persons unable to protect their own interests) the procedural safeguards required before deprivations occur. The deprivation here is "unauthorized" only in the sense that it was not an act sanctioned by state law, but, instead, was a "depriv[ation] of constitutional rights ... by an official’s abuse of his position."
      Monroe , 365 U.S., at 172.

      We conclude that petitioners cannot escape § 1983 liability by characterizing their conduct as a "random, unauthorized" violation of Florida law which the State was not in a position to predict or avert, so that all the process Burch could possibly be due is a postdeprivation damages remedy. Burch, according to the allegations of his complaint, was deprived of a substantial liberty interest without either valid consent or an involuntary placement hearing, by the very state officials charged with the power to deprive mental patients of their liberty and the duty to implement procedural safeguards. Such a deprivation is foreseeable, due to the nature of mental illness, and will occur, if at all, at a predictable point in the admission process. Unlike Parratt and Hudson, this case does not represent the special instance of the Mathews due process analysis where postdeprivation safeguards would be of use in preventing the kind of deprivation alleged.
      494 U.S. at 136-139.

      Justice O’Connor’s dissenting opinion repudiated the majority’s effort to find Parratt inapplicable to deprivations caused by state officials with delegated authority:

      [T]he Court suggests that this case differs from Parratt andHudson because petitioners possessed a sort of delegated power. See ante, at 988-990. Yet petitioners no more had the delegated power to depart from the admission procedures and requirements than did the guard in Hudson to exceed the limits of his established search and seizure authority, or the prison official in Parratt wrongfully to withhold or misdeliver mail. Petitioner’s delegated duty to act in accord with Florida’s admission procedures is akin to the mailhandler’s duty to follow and implement the procedures surrounding delivery of packages, or the guard’s duty to conduct the search properly. In the appropriate circumstances and pursuant to established procedures, the guard in Hudson was charged with seizing property pursuant to a search. The official in Parratt no doubt possessed some power to withhold certain packages from prisoners. Parratt and Hudson distinguish sharply between deprivations caused by unauthorized acts and those occasioned by established state procedures. See Hudson, 468 U.S. at 532, 104 S. Ct. , at 3203; Parratt, 451 U.S., at 541, 101 S. Ct., at 1916; accord Logan, 455 U.S. at 435-436, 102 S. Ct., at 1157-58. The delegation argument blurs this line and ignores the unauthorized nature of petitioner’s alleged departure from established practices.
      494 U.S. at 145-46.

   5. Following Parratt, the lower courts uniformly held that the availability of state remedies will not preclude claimed invasions of substantive rights, as opposed to postdeprivation violations of procedural due process. As the court explained in Gilmere v. City of Atlanta , 774 F.2d 1495, 1500 (11th Cir. 1985), cert. denied, 476 U.S. 1124 (1986),

      Unlike procedural due process claims, which challenge the adequacy of the procedures used by the government in deciding how to treat individuals, substantive due process claims allege that certain governmental conduct would remain unjustified even if it were accompanied by the most stringent of procedural safeguards. Such substantive claims are outside the scope of Parratt because the constitutional violation is complete at the moment when the harm occurs. The existence of state post-deprivation remedies therefore has no bearing on whether the plaintiff has a constitutional claim.

      In Zinermon v. Burch, 494 U.S. 113, 124-25 (1990), the Supreme Court acknowledged this significant limit on the reach of the Parratt doctrine:

      In Monroe v. Pape, this Court rejected the view that § 1983 applies only to violations of constitutional rights that are authorized by state law, and does not reach abuses of state authority that are forbidden by the State’s statutes or Constitution or are torts under the State’s common law.

      * * * * *

      Thus, overlapping state remedies are generally irrelevant to the question of the existence of a cause of action under § 1983.

      * * * * *

      This general rule applies in a straightforward way to two of the three kinds of § 1983 claims that may be brought against the State under the Due Process Clause of the Fourteenth Amendment. First, the Clause incorporates many of the specific protections defined in the Bill of Rights. A plaintiff may bring suit under § 1983 for state officials’ violation of his rights to, e.g., freedom of speech or freedom from unreasonable searches and seizures. Second, the Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions "regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U.S., at 331. As to these two types of claims, the constitutional violation actionable under § 1983 is complete when the wrongful action is taken. Id., at 338 (Stevens, J., concurring in judgments). A plaintiff, under Monroe v. Pape, may invoke § 1983 regardless of any state-tort remedy that might be available to compensate him for the deprivation of these rights.

   
   494 U.S. at 124-25. But see Albright v. Oliver, 510 U.S. 266, 283-285 (1994) (Kennedy, A. concurring) (where injury is covered by a random and unauthorized act, post-deprivation state remedy bars substantive as well as procedural due process claim); Peter J. Rubin, Square Pegs and Round Holes: Substantive Due Process, Procedural Due Process, and the Bill of Rights, 103 Colum. L. Rev. 833, 872-892 (2003).

4. The assertion that due process was supplied by an adequate post-deprivation state remedy was not raised by the petitioners in Parratt until their petition for rehearing filed in the court of appeals. In Prudential Federal Savings and Loan Association v. Flanigan , 478 U.S. 1311 (1986), the petitioners made an application for a writ of injunction pending appeal raising constitutional issues. These issues, however, had not been presented to the state’s highest court until a petition for rehearing.

   Justice Rehnquist, serving as Circuit Justice, denied the application, ruling the claims were not properly presented to the Supreme Court. Justice Rehnquist relied on the seemingly established rule that "‘[q]uestions first presented to the highest State Court on a petition for rehearing came too late for consideration here...’" Id., citing Radio Station WOW v. Johnson, Inc. , 326 U.S. 120, 128 (1945).

   Why did the court entertain the adequacy of post-deprivation state remedies argument in Parratt?

5. What criteria must a post-deprivation state court remedy fulfill to satisfy the Due Process Clause of the Fourteenth Amendment? Must the state remedy be equally effective to that afforded by Section 1983? Cf.Carson v. Green, 446 U.S. 14 (1980). The Supreme Court granted certiorari in Daniels v. Williams, 474 U.S. 327 (1986) to determine, among other things, whether a post-deprivation state cause of action accords due process where recovery may be barred by a sovereign immunity defense.

Daniels v. Williams

Justice Rehnquist delivered the opinion of the Court.

* * * * *

In this § 1983 action, petitioner seeks to recover damages for back and ankle injuries allegedly sustained when he fell on a prison stairway. He claims that, while an inmate at the city jail in Richmond, Virginia, he slipped on a pillow negligently left on the stairs by respondent, a correctional deputy stationed at the jail. Respondent's negligence, the argument runs, "deprived" petitioner of his "liberty" interest in freedom from bodily injury, seeIngraham v. Wright , 430 U.S. 651, 673 (1977); because respondent maintains that he is entitled to the defense of sovereign immunity in a state tort suit, petitioner is without an "adequate" state remedy, cf.Hudson v. Palmer, 468 U.S. 517, 534-536 (1984). Accordingly, the deprivation of liberty was without "due process of law."

InParratt v. Taylor , we granted certiorari, as we had twice before, "to decide whether mere negligence will support a claim for relief under § 1983." 451 U.S., at 532. After examining the language, legislative history, and prior interpretations of the statute, we concluded that § 1983, unlike its criminal counterpart, 18 U. S. C. § 242, contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right. Id., at 534-535. We adhere to that conclusion. But in any given § 1983 suit, the plaintiff must still prove a violation of the underlying constitutional right; and depending on the right, merely negligent conduct may not be enough to state a claim. See, e. g., Arlington Heights v. Metropolitan Housing Dev. Corp. , 429 U.S. 252 (1977) (invidious discriminatory purpose required for claim of racial discrimination under the Equal Protection Clause);Estelle v. Gamble , 429 U.S. 97, 105 (1976)("deliberate indifference" to prisoner's serious illness or injury sufficient to constitute cruel and unusual punishment under the Eighth Amendment).

In Parratt v. Taylor , before concluding that Nebraska's tort remedy provided all the process that was due, we said that the loss of the prisoner's hobby kit, "even though negligently caused, amounted to a deprivation [under the Due Process Clause]." 451 U.S., at 536-537. Justice Powell, concurring in the result, criticized the majority for "[passing] over" this important question of the state of mind required to constitute a "deprivation" of property. Id., at 547. He argued that negligent acts by state officials, though causing loss of property, are not actionable under the Due Process Clause. To Justice Powell, mere negligence could not "[work] a deprivation in the constitutional sense." Id., at 548 (emphasis in original). Not only does the word "deprive" in the Due Process Clause connote more than a negligent act, but we should not "open the federal courts to lawsuits where there has been no affirmative abuse of power." Id., at 548-549; see also id., at 545 (Stewart, J., concurring) ("To hold that this kind of loss is a deprivation of property within the meaning of the Fourteenth Amendment seems not only to trivialize, but grossly to distort the meaning and intent of the Constitution"). Upon reflection, we agree and overrule Parratt to the extent that it states that mere lack of due care by a state official may "deprive" an individual of life, liberty, or property under the Fourteenth Amendment.

The Due Process Clause of the Fourteenth Amendment provides: "[Nor] shall any State deprive any person of life, liberty, or property, without due process of law." Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property. E. g., Davidson v. New Orleans , 96 U.S. 97 (1878) (assessment of real estate); Rochin v. California, 342 U.S. 165 (1952) (stomach pumping); Bell v. Burson , 402 U.S. 535 (1971) (suspension of driver's license); Ingraham v. Wright, 430 U.S. 651 (1977) (paddling student); Hudson v. Palmer , 468 U.S. 517 (1984) (intentional destruction of inmate's property). No decision of this Court before Parratt supported the view that negligent conduct by a state official, even though causing injury, constitutes a deprivation under the Due Process Clause. This history reflects the traditional and common-sense notion that the Due Process Clause, like its forebear in the Magna Carta, see Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 Harv. L. Rev. 366, 368 (1911), was "'intended to secure the individual from the arbitrary exercise of the powers of government,'" Hurtado v. California , 110 U.S. 516, 527 (1884) (quoting Bank of Columbia v. Okely, 4 Wheat. 235, 244 (1819)). See also Wolff v. McDonnell , 418 U.S. 539, 558 (1974) ("The touchstone of due process is protection of the individual against arbitrary action of government, Dent v. West Virginia , 129 U.S. 114, 123 (1889)"); Parratt , supra, at 549 (Powell, J., concurring in result). By requiring the government to follow appropriate procedures when its agents decide to "deprive any person of life, liberty, or property," the Due Process Clause promotes fairness in such decisions. And by barring certain government actions regardless of the fairness of the procedures used to implement them, e. g., Rochin , supra, it serves to prevent governmental power from being "used for purposes of oppression," Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 277 (1856) (discussing Due Process Clause of Fifth Amendment).

We think that the actions of prison custodians in leaving a pillow on the prison stairs, or mislaying an inmate's property, are quite remote from the concerns just discussed. Far from an abuse of power, lack of due care suggests no more than a failure to measure up to the conduct of a reasonable person. To hold that injury caused by such conduct is a deprivation within the meaning of the Fourteenth Amendment would trivialize the centuries-old principle of due process of law.

The Fourteenth Amendment is a part of a Constitution generally designed to allocate governing authority among the Branches of the Federal Government and between that Government and the States, and to secure certain individual rights against both State and Federal Government. When dealing with a claim that such a document creates a right in prisoners to sue a government official because he negligently created an unsafe condition in the prison, we bear in mind Chief Justice Marshall's admonition that "we must never forget, that it is a constitution we are expounding," McCulloch v. Maryland, 4 Wheat. 316, 407 (1819) (emphasis in original). Our Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society. We have previously rejected reasoning that "'would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States,'" Paul v. Davis , 424 U.S. 693, 701 (1976), quoted in Parratt v. Taylor, 451 U.S., at 544.

The only tie between the facts of this case and anything governmental in nature is the fact that respondent was a sheriff's deputy at the Richmond city jail and petitioner was an inmate confined in that jail. But while the Due Process Clause of the Fourteenth Amendment obviously speaks to some facets of this relationship, see, e. g., Wolff v. McDonnell , supra, we do not believe its protections are triggered by lack of due care by prison officials. "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner," Estelle v. Gamble, 429 U.S. 97, 106 (1976), and "false imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official." Baker v. McCollan, 443 U.S. 137, 146 (1979). Where a government official's act causing injury to life, liberty, or property is merely negligent, "no procedure for compensation is constitutionally required." Parratt, supra, at 548 (Powell, J., concurring in result) (emphasis added).¹

That injuries inflicted by governmental negligence are not addressed by the United States Constitution is not to say that they may not raise significant legal concerns and lead to the creation of protectible legal interests. The enactment of tort claim statutes, for example, reflects the view that injuries caused by such negligence should generally be redressed.² It is no reflection on either the breadth of the United States Constitution or the importance of traditional tort law to say that they do not address the same concerns.

In support of his claim that negligent conduct can give rise to a due process "deprivation," petitioner makes several arguments, none of which we find persuasive. He states, for example, that "it is almost certain that some negligence claims are within § 1983," and cites as an example the failure of a State to comply with the procedural requirements of Wolff v. McDonnell, supra, before depriving an inmate of good-time credit. We think the relevant action of the prison officials in that situation is their deliberate decision to deprive the inmate of good-time credit, not their hypothetically negligent failure to accord him the procedural protections of the Due Process Clause. But we need not rule out the possibility that there are other constitutional provisions that would be violated by mere lack of care in order to hold, as we do, that such conduct does not implicate the Due Process Clause of the Fourteenth Amendment.

Petitioner also suggests that artful litigants, undeterred by a requirement that they plead more than mere negligence, will often be able to allege sufficient facts to support a claim of intentional deprivation. In the instant case, for example, petitioner notes that he could have alleged that the pillow was left on the stairs with the intention of harming him. This invitation to "artful" pleading, petitioner contends, would engender sticky (and needless) disputes over what is fairly pleaded. What's more, requiring complainants to allege something more than negligence would raise serious questions about what "more" than negligence -- intent, recklessness, or "gross negligence" -- is required,sup>3 and indeed about what these elusive terms mean. See Reply Brief for Petitioner 9 ("what terms like willful, wanton, reckless or gross negligence mean" has "left the finest scholars puzzled"). But even if accurate, petitioner's observations do not carry the day. In the first place, many branches of the law abound in nice distinctions that may be troublesome but have been thought nonetheless necessary:

"I do not think we need trouble ourselves with the thought that my view depends upon differences of degree. The whole law does so as soon as it is civilized." LeRoy Fibre Co. v. Chicago, M. & St. P. R. Co., 232 U.S. 340, 354 (1914) (Holmes, J., partially concurring).

More important, the difference between one end of the spectrum -- negligence -- and the other -- intent -- is abundantly clear. See O. Holmes, The Common Law 3 (1923). In any event, we decline to trivialize the Due Process Clause in an effort to simplify constitutional litigation.

Justice Stevens, concurring in the judgments.

I would not reject these claims, as the Court does, by attempting to fashion a new definition of the term "deprivation" and excluding negligence from its scope. No serious question has been raised about the presence of "state action" in the allegations of negligence, and the interest in freedom from bodily harm surely qualifies as an interest in "liberty." Thus, the only question is whether negligence by state actors can result in a deprivation. "Deprivation," it seems to me, identifies, not the actor's state of mind, but the victim's infringement or loss. The harm to a prisoner is the same whether a pillow is left on a stair negligently, recklessly, or intentionally; so too, the harm resulting to a prisoner from an attack is the same whether his request for protection is ignored negligently, recklessly, or deliberately. In each instance, the prisoner is losing -- being "deprived" of -- an aspect of liberty as the result, in part, of a form of state action.

Thus, I would characterize each loss as a "deprivation" of liberty. Because the cases raise only procedural due process claims, however, it is also necessary to examine the nature of petitioners' challenges to the state procedures. To prevail, petitioners must demonstrate that the state procedures for redressing injuries of this kind are constitutionally inadequate. Petitioners must show that they contain a defect so serious that we can characterize the procedures as fundamentally unfair, a defect so basic that we are forced to conclude that the deprivation occurred without due process.

Daniels' claim is essentially the same as the claim we rejected in Parratt . The Court of Appeals for the Fourth Circuit determined that Daniels had a remedy for the claimed negligence under Virginia law. Although Daniels vigorously argues that sovereign immunity would have defeated his claim, the Fourth Circuit found to the contrary, and it is our settled practice to defer to the Courts of Appeals on questions of state law. It is true that Parratt involved an injury to "property" and that Daniels' case involves an injury to "liberty," but, in both cases, the plaintiff claimed nothing more than a "procedural due process" violation. In both cases, a predeprivation hearing was definitionally impossible. And, in both cases, the plaintiff had state remedies that permitted recovery if state negligence was established. Thus, a straightforward application of Parratt defeats Daniels' claim.

Daniels v. Williams Transcript

Daniels v. Williams Briefs

Notes on Daniels v. Williams

1. Does Daniels clarify whether Section 1983 imposes a culpability requirement beyond that set forth by the Constitution?

2. As Justice Rehnquist noted in Baker v. McCollan, 443 U.S. 137, 140 n.1 (1979), the state of mind of the defendant may be relevant on the issue of whether a constitutional violation has occurred in the first place, quite apart from the issue of whether § 1983 contains some qualification of that nature before a defendant may be held to respond in damages...
   1. Often the question of whether particular government action violates the Constitution does not depend on the intent of the defendant or the reasonableness of his conduct, but instead turns on whether the official has contravened a legal standard established by judicial decisions. For example, while the Fourth Amendment prohibits "unreasonable searches and seizures," the factual question of the reasonableness of the officer’s conduct under the circumstances is generally inapposite to whether she has violated the amendment. Anderson v. Creighton, 483 U.S. 635, 643 (1987) . Instead, the courts measure the officer’s actions against the legal standard of probable cause and the requirement that a warrant be obtained. See Dunnaway v. New York , 442 U.S. 200, 213-14 (1979) ("[R]espondent urges us to adopt a multifactor balancing test of ‘reasonable police conduct under the circumstances' to cover all seizures that do not amount to technical arrests. . . . [T]he requisite ‘balancing' has been performed in centuries of precedent and is embodied in the principle that seizures are ‘reasonable' only if supported by probable cause.").

   2. While the intent or reasonableness of the official’s conduct is at times immaterial to the constitutional standard, certain rights guaranteed by the Constitution are violated only where the officer acted recklessly or with an intent to deprive plaintiff of the constitutional right. See Mobile v. Bolden, 446 U.S. 55, 66 (1980) ("the basic principle [is] that only if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment."); Weatherford v. Bursey , 429 U.S. 545 (1977) (presence of undercover agent at meetings between criminal defendant and his attorney did not deprive accused of right to effective assistance of counsel absent intent to intrude into attorney-client relationship to learn defense plan); Mount Healthy City School District Board of Education v. Doyle , 429 U.S. 274, 287 (1977) (teacher must prove that First Amendment activities were a "motivating factor" in decision not to rehire him to establish constitutional violation); Estelle v. Gamble , 429 U.S. 97, 106 (1977) (proof of negligence in administering medical care to a prisoner is insufficient to state a claim for violation of the Eighth Amendment. The prisoner must demonstrate "deliberate indifference to serious medical needs.")

3. Does Daniels hold that negligent conduct may never constitute a deprivation of life, liberty or property?
   1. While both Parratt and Daniels dealt with negligent conduct that was inadvertent, negligence may also consist of intentional acts that are unreasonable because of the risk of harm posed to others. In such instances, the difference between negligence and recklessness is that the actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent. The difference between reckless misconduct and conduct involving only such quantum of risk as is necessary to make it negligent is a difference in the degree of risk, but this difference of degree is so marked as to amount substantially to a difference in kind.

      the actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent. The difference between reckless misconduct and conduct involving only such quantum of risk as is necessary to make it negligent is a difference in the degree of risk, but this difference of degree is so marked as to amount substantially to a difference in kind.

      Restatement (Second) of Torts § 500, Comment g. Should the Fourteenth Amendment be interpreted to proscribe intentional, as opposed to inadvertent, actions that are negligent but not reckless?

   2. In a companion case to Daniels, the Court held that a prisoner who claimed that prison officials negligently failed to protect him from attack from another inmate did not establish a "deprivation" within the meaning of the Fourteenth Amendment. Davidson v. Cannon, 474 U.S. 344 (1986). "As we held in Daniels, the protections of the Due Process Clause, whether procedural or substantive, are just not triggered by lack of due care by prison officials." Davidson, 474 U.S. at 348.

      Justice Blackmun, joined by Justice Marshall, dissented from the majority’s holding that negligence could never constitute a "deprivation" of liberty:

      I agree that mere negligent activity ordinarily will not amount to an abuse of state power. Where the Court today errs, in my view, is in elevating this sensible rule of thumb to the status of inflexible constitutional dogma. The Court declares that negligent activity can never implicate the concerns of the Due Process Clause. I see no justification for this rigid view. In some cases, by any reasonable standard, governmental negligence is an abuse of power. This is one of those cases.

      It seems to me that when a State assumes sole responsibility for one’s physical security and then ignores his call for help, the State cannot claim that it did not know a subsequent injury was likely to occur. Under such circumstances, the State should not automatically be excused from responsibility. In the context of prisons, this means that once the State has taken away an inmate’s means of protecting himself from attack by other inmates, a prison official’s negligence in providing protection can amount to a deprivation of the inmate’s liberty, at least absent extenuating circumstances. Such conduct by state officials seems to me to be the "arbitrary action" against which the Due Process Clause protects. The official’s actions in such cases thus are not remote from the purpose of the Due Process Clause and § 1983.

      Negligence in such a case implicates the "‘[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’" Monroe v. Pape, 365 U.S. 167, 184 (1961), quoting United States v. Classic, 313 U.S. 299, 326 (1941). The deliberate decision not to protect Davidson from a known threat was directly related to the often violent life of prisoners. And protecting inmates from attack is central to one of the State’s primary missions in running a prison -- the maintenance of internal security. See Hudson v. Palmer , 468 U.S. 517, 524 (1986).

      The Fourteenth Amendment is not trivialized ... by recognizing that in some situations negligence can lead to a deprivation of liberty. On the contrary, excusing the State’s failure to provide reasonable protection to inmates against prison violence demeans both the Fourteenth Amendment and individual dignity.
      Id. at 353-56.

   3. The provisions of the Bill of Rights are made applicable to the states only by virtue of selective incorporation through the Due Process Clause of the Fourteenth Amendment. Does Daniels consequently hold that a state or local official cannot be deemed to have violated any provision of the Bill of Rights by negligent conduct?

   4. Does the Daniels Court’s interpretation of the term "deprivation" in the Fourteenth Amendment apply equally to the term in the text of 42 U.S.C. § 1983?

4. The Daniels Court expressly declined to consider whether recklessness or "gross negligence" may constitute a "deprivation" within the meaning of the Due Process Clause of the Fourteenth Amendment. 474 U.S. 327, 334 n.3 (1986).
   1. Although some courts have held that "gross negligence", as opposed to "mere negligence" amounts to a Fourteenth Amendment violation, see Dell Fargo v. City of San Juan Bautista , 857 F.2d 638, 640-41 (9th Cir. 1988) and cases cited at 640 n.3, at least one court has found that allegations of gross negligence do not state a Fourteenth Amendment violation. Myers v. Morris, 810 F.2d 1437, 1468 (8thCir.) cert. denied, 484 U.S. 828 (1987). In Metzger v. Osbeck , 841 F.2d 518, 523-24 (3rd Cir. 1988), Judge Weis vigorously dissented from the majority’s determination that the Due Process Clause proscribes grossly negligent conduct:

      I also must disagree with the majority’s footnote that this case can be sent to the jury on a theory of "gross negligence." In cases of this nature, the use of "gross" as opposed to "simple" negligence will not serve to overcome the distinction between an ordinary tort and a constitutional violation. As Chief Judge Gibbons pointed out in his dissent in Davidson v. O’Lone, 752 F.2d 817 (3d Cir. 1984), aff’d sub. nom. Davidson v. Cannon, 474 U.S. 344, 106 S. Ct. 668, 88 L.Ed.2d 677 (1986): "The prevailing view is that there are no ‘degrees’ of care or negligence, as a matter of law; there are only different amounts of care as a matter of fact; and ‘gross negligence’ is merely the same thing as ordinary negligence, ‘with the addition,’ as Baron Rolfe once put it, ‘of a vituperative epithet.’" See id. at 853 (quoting W. Prosser, Handbook of the Law of Torts 182 (4th ed. 1971)).

      Cf. Farmer v. Brennan, 511 U.S. 825, 836, n.4 (1994) ("Between the poles [of negligence and intent] lies ‘gross negligence’ too, but the term is a ‘nebulous’ one, in practice meaning little different from recklessness as generally understood in civil law....")

   2. In Davidson v. Cannon, 474 U.S. 344, 358 (1986), Justice Blackmun, in a dissenting opinion joined by Justice Marshall, opined that reckless conduct would rise to a Due Process violation:

      Reckless or deliberate indifference is all that a prisoner need prove to show that denial of essential medical care violated the Eighth Amendment’s ban on cruel and unusual punishment. The Due Process Clause provides broader protection than does the Eighth Amendment, so a violation of the Due Process Clause certainly should not require a more culpable mental state. [citations omitted]

      Justice Brennan, in a separate dissenting opinion, agreed that a deprivation is established by proof of recklessness or deliberate indifference. Id. at 349.

   3. In Farmer v. Brennan, 511 U.S. 825 (1994), the Court interpreted the standard of culpability of "deliberate indifference" for purposes of establishing a violation of the Eighth Amendment arising out of prison officials’ alleged failure to protect a transsexual inmate from a sexual assault by another inmate. The Court first approved the court of appeals’ decisions equating deliberate indifference with recklessness, a level of culpability lying between negligence and purpose or knowledge. Id. at 836. It then turned to the issue of whether plaintiff could prevail by proving recklessness as defined by the civil law -- a act or failure to act "in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known." Id. The Court held that to establish a violation of the Eighth Amendment for denying an inmate humane conditions of confinement, a plaintiff must prove recklessness as that term is used in the criminal law -- disregard of a risk of harm of which the person is aware.

      [T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. This approach comports best with the text of the Amendment as our cases have interpreted it. The Eighth Amendment does not outlaw cruel and unusual "conditions"; it outlaws cruel and unusual "punishments." An act or omission unaccompanied by knowledge of a significant risk of harm might well be something society wishes to discourage, and if harm does result society might well wish to assure compensation. The common law reflects such concerns when it imposes tort liability on a purely objective basis. See Prosser and Keeton §§ 2, 34, pp. 6, 213-214; see also Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680; United States v. Muniz, 374 U.S. 150, 83 S. Ct. 1850, 10 L.Ed.2d 805 (1963). But an official’s failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.

      
      Id. at 837-38.

      The Court made clear, however, that its decision was based upon the text and precedents under the Eighth Amendment and not necessarily a universally applicable construction of the term "deliberate indifference."

      Our decision that Eighth Amendment liability requires consciousness of a risk is thus based on the Constitution and our cases, not merely on a parsing of the phrase "deliberate indifference." And we do not reject petitioner’s arguments for a thoroughly objective approach to deliberate indifference without recognizing that on the crucial point (whether a prison official must know of a risk, or whether it suffices that he should know) the term does not speak with certainty. Use of "deliberate," for example, arguably requires nothing more than an act (or omission) of indifference to a serious risk that is voluntary, not accidental. Cf. Estelle, 429 U.S. at 105, 97 S. Ct. at 291-292 (distinguishing "deliberate indifference" from "accident" or "inadverten[ce]"). And even if "deliberate" is better read as implying knowledge of a risk, the concept of constructive knowledge is familiar enough that the term "deliberate indifference" would not, of its own force, preclude a scheme that conclusively presumed awareness from a risk’s obviousness.
      Id. at 840.

   4. In Collins v. City of Harker Heights, 503 U.S. 115 (1992), the Supreme Court rejected plaintiff’s effort to impose liability under Section 1983 for the city’s failure to train its employees about the dangers of working in sewer lines and manholes. Construing the plaintiff’s complaint as resting upon the substantive aspect of the Due Process Clause, the Court reasoned:

      [T]he city’s alleged failure to train its employees, or to warn them about known risks of harm, was [not] an omission that can be properly characterized as arbitrary or conscience-shocking in a constitutional sense. Petitioner’s claim is analogous to a fairly typical state tort claim: The city breached its duty of care to her husband by failing to provide a safe working environment...[T]he Due Process Clause "does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society."

      503 U.S. at 128-29. In County of Sacramento v. Lewis, 523 U.S. 833 (1998), the Court considered the standard of culpability governing a claimed violation of substantive due process arising out of a high speed automobile chase that resulted in the death of plaintiffs' sixteen-year-old son. Reversing the Ninth Circuit's determination that deliberate indifference to or reckless disregard for life was the appropriate standard of fault, the Supreme Court held that only governmental action that shocks the conscience offends the substantive dimension of the Due Process Clause. The Court then elaborated on the meaning of the shocks the conscience standard:

      It should not be surprising that the constitutional concept of conscience-shocking duplicates no traditional category of common-law fault, but rather points clearly away from liability, or clearly toward it, only at the ends of the tort law's spectrum of culpability. . . . We have accordingly rejected the lowest common denominator of customary tort liability as any mark of sufficiently shocking conduct, and have held that the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process. . . . It is, on the contrary, behavior at the other end of the culpability spectrum that would most probably support a substantive due process claim; conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level. [citation omitted]

      Whether the point of the conscience-shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but "less than intentional conduct, such as recklessness or ‘gross negligence,'" . . . is a matter for closer calls. To be sure, we have expressly recognized the possibility that some official acts in this range may be actionable under the Fourteenth Amendment, and our cases have compelled recognition that such conduct is egregious enough to state a substantive due process claim in at least one instance. We held in City of Revere v. Massachusetts Gen. Hospital, 463 U.S. 239, 77 L. Ed. 2d 605, 103 S. Ct. 2979 (1983), that "the due process rights of a [pretrial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner." Id., at 244 (citing Bell v. Wolfish, 441 U.S. 520, 535, n. 16, 545, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979)). Since it may suffice for Eighth Amendment liability that prison officials were deliberately indifferent to the medical needs of their prisoners, see Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), it follows that such deliberately indifferent conduct must also be enough to satisfy the fault requirement for due process claims based on the medical needs of someone jailed while awaiting trial. . . .

      Rules of due process are not, however, subject to mechanical application in unfamiliar territory. Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience-shocking. . . .

      Thus, attention to the markedly different circumstances of normal pretrial custody and high-speed law enforcement chases shows why the deliberate indifference that shocks in the one case is less egregious in the other (even assuming that it makes sense to speak of indifference as deliberate in the case of sudden pursuit). As the very term "deliberate indifference" implies, the standard is sensibly employed only when actual deliberation is practical, see Whitley v. Albers, 475 U.S. at 320, n11 and in the custodial situation of a prison, forethought about an inmate's welfare is not only feasible but obligatory under a regime that incapacitates a prisoner to exercise ordinary responsibility for his own welfare. . . .

      Nor does any substantial countervailing interest excuse the State from making provision for the decent care and protection of those it locks up; "the State's responsibility to attend to the medical needs of prisoners [or detainees] does not ordinarily clash with other equally important governmental responsibilities." Whitley v. Albers, supra, at 320.

      But just as the description of the custodial prison situation shows how deliberate indifference can rise to a constitutionally shocking level, so too does it suggest why indifference may well not be enough for liability in the different circumstances of a case like this one. We have, indeed, found that deliberate indifference does not suffice for constitutional liability (albeit under the Eighth Amendment) even in prison circumstances when a prisoner's claim arises not from normal custody but from response to a violent disturbance. . . . In those circumstances, liability should turn on "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." 475 U.S. at 320-321 (internal quotation marks omitted). The analogy to sudden police chases (under the Due Process Clause) would be hard to avoid.

      Like prison officials facing a riot, the police on an occasion calling for fast action have obligations that tend to tug against each other. . . . A police officer deciding whether to give chase must balance on one hand the need to stop a suspect and show that flight from the law is no way to freedom, and, on the other, the high-speed threat to everyone within stopping range, be they suspects, their passengers, other drivers, or bystanders.

      To recognize a substantive due process violation in these circumstances when only mid-level fault has been shown would be to forget that liability for deliberate indifference to inmate welfare rests upon the luxury enjoyed by prison officials of having time to make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations. . . . But when unforeseen circumstances demand an officer's instant judgment, even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that implicates "the large concerns of the governors and the governed." Daniels v. Williams, 474 U.S. at 332. Just as a purpose to cause harm is needed for Eighth Amendment liability in a riot case, so it ought to be needed for Due Process liability in a pursuit case. Accordingly, we hold that high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action under § 1983.

      Lewis, 523 U.S. at 848-54.

5. A culpability requirement in Section 1983 actions also may be introduced by the qualified immunity defense, which allows a defendant to avoid liability when his actions, albeit unconstitutional, are not blameworthy. Consequently, proper analysis of the standard of fault in suits under Section 1983 must consider a) any culpability that plaintiff must prove to establish a constitutional violation; b) any additional culpability requirement imposed by the statute as part of the plaintiff’s prima facie case; and c) the elements of the qualified immunity defense. The interrelationship of the three sources of culpability will be explored in Chapter II(D), infra.

6. Having found no constitutional violation in Daniels and Davidson, the Court had no occasion to determine whether the state post-deprivation remedy was rendered inadequate by the availability of a sovereign immunity defense. Justices Blackmun and Stevens did address the issue and arrived at contrary conclusions. Justice Blackmun, joined by Justice Marshall in dissent in Davidson , opined that the state tort action was not an adequate post-deprivation remedy because the prisoner’s complaint would have been dismissed before being heard on the merits due to the sovereign immunity defense.

   Conduct that is wrongful under § 1983 surely cannot be immunized by state law. A State can define defenses, including immunities, to state-law causes of action, as long as the state rule does not conflict with federal law...But permitting a state immunity defense to control in a § 1983 action “‘would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced.’”...

   Davidson has been denied “‘an opportunity...granted at a meaningful time and in a meaningful manner’...’for [a] hearing appropriate to the nature of the case.’”...Lacking a meaningful postdeprivation remedy in state court, Davidson was deprived of his liberty without due process of law.

   
   Davidson v. Cannon, 474 U.S. 344, 359-60 (1986) (Blackmun, J. dissenting).

   Justice Stevens, on the other hand, found that the state tort remedy afforded sufficient due process notwithstanding the immunity defense.

   Those aspects of a State’s tort regime that defeat recovery are not constitutionally invalid, so long as there is no fundamental unfairness in their operation. Thus, defenses such as contributory negligence or statutes of limitations may defeat recovery in particular cases without raising any question about the constitutionality of a State’s procedures for disposing of tort litigation. Similarly, in my judgment, the mere fact that a State elects to provide some of its agents with a sovereign immunity defense in certain cases does not justify the conclusion that its remedial system is constitutionally inadequate. There is no reason to believe that the Due Process Clause of the Fourteenth Amendment and the legislation enacted pursuant to § 5 of that Amendment should be construed to suggest that the doctrine of sovereign immunity renders a state procedure fundamentally unfair. Davidson’s challenge has been only to the fact of sovereign immunity; he has not challenged the difference in treatment of a prisoner assaulted by a prisoner and a nonprisoner assaulted by a prisoner, and I express no comment on the fairness of that differentiation.

Rizzo v. Goode

Mr. Justice Rehnquist delivered the opinion of the Court.

The District Court for the Eastern District of Pennsylvania, after parallel trials of separate actions filed in 1970, entered an order in 1973 requiring petitioners "to submit to [the District] Court for its approval a comprehensive program for improving the handling of citizen complaints alleging police misconduct" in accordance with a comprehensive opinion filed together with the order. The proposed program, negotiated between petitioners and respondents for the purpose of complying with the order, was incorporated six months later into a final judgment. Petitioner City Police Commissioner was thereby required, inter alia, to put into force a directive governing the manner by which citizens' complaints against police officers should henceforth be handled by the department. The Court of Appeals for the Third Circuit, upholding the District Court's finding that the existing procedures for handling citizen complaints were "inadequate," affirmed the District Court's choice of equitable relief: "The revisions were... ordered because they appeared to have the potential for prevention of future police misconduct." 506 F. 2d 542, 548 (CA3 1974). We granted certiorari to consider petitioners' claims that the judgment of the District Court represents an unwarranted intrusion by the federal judiciary into the discretionary authority committed to them by state and local law to perform their official functions. We find ourselves substantially in agreement with these claims, and we therefore reverse the judgment of the Court of Appeals.

I

The central thrust of respondents' efforts in the two trials was to lay a foundation for equitable intervention, in one degree or another, because of an assertedly pervasive pattern of illegal and unconstitutional mistreatment by police officers. This mistreatment was said to have been directed against minority citizens in particular and against all Philadelphia residents in general. The named individual and group respondents were certified to represent these two classes. The principal petitioners here -- the Mayor, the City Managing Director, and the Police Commissioner -- were charged with conduct ranging from express authorization or encouragement of this mistreatment to failure to act in a manner so as to assure that it would not recur in the future.

Hearing some 250 witnesses during 21 days of hearings, the District Court was faced with a staggering amount of evidence; each of the 40-odd incidents might alone have been the piece de resistance of a short, separate trial. The District Court carefully and conscientiously resolved often sharply conflicting testimony, and made detailed findings of fact, which both sides now accept, with respect to eight of the incidents presented by the Goode respondents and with respect to 28 of those presented by COPPAR.

The principal antagonists in the eight incidents recounted in Goode were Officers DeFazio and D'Amico, members of the city's "Highway Patrol" force. They were not named as parties to the action. The District Court found the conduct of these officers to be violative of the constitutional rights of the citizen complainants in three of the incidents, and further found that complaints to the police Board of Inquiry had resulted in one case in a relatively mild five-day suspension and in another case a conclusion that there was no basis for disciplinary action.

In only two of the 28 incidents recounted in COPPAR (which ranged in time from October 1969 to October 1970) did the District Court draw an explicit conclusion that the police conduct amounted to a deprivation of a federally secured right; it expressly found no police misconduct whatsoever in four of the incidents; and in one other the departmental policy complained of was subsequently changed. As to the remaining 21, the District Court did not proffer a comment on the degree of misconduct that had occurred: whether simply improvident, illegal under police regulations or state law, or actually violative of the individual's constitutional rights. Respondents' brief asserts that of this latter group, the facts as found in 14 of them "reveal [federal] violations." While we think that somewhat of an overstatment, we accept it, arguendo, and thus take it as established that, insofar as the COPPAR record reveals, there were 16 incidents occurring in the city of Philadelphia over a year's time in which numbers of police officers violated citizens' constitutional rights. Additionally, the District Court made reference to citizens' complaints to the police in seven of those 16; in four of which, involving conduct of constitutional dimension, the police department received complaints but ultimately took no action against the offending officers.

The District Court made a number of conclusions of law, not all of which are relevant to our analysis. It found that the evidence did not establish the existence of any policy on the part of the named petitioners to violate the legal and constitutional rights of the plaintiff classes, but it did find that evidence of departmental procedure indicated a tendency to discourage the filing of civilian complaints and to minimize the consequences of police misconduct. It found that as to the larger plaintiff class, the residents of Philadelphia, only a small percentage of policemen commit violations of their legal and constitutional rights, but that the frequency with which such violations occur is such that "they cannot be dismissed as rare, isolated instances." COPPAR v. Rizzo, 357 F.Supp. 1289, 1319 (ED Pa. 1973). In the course of its opinion, the District Court commented:

"In the course of these proceedings, much of the argument has been directed toward the proposition that courts should not attempt to supervise the functioning of the police department. Although, contrary to the defendants' assertions, the Court's legal power to do just that is firmly established,... I am not persuaded that any such drastic remedy is called for, at least initially, in the present cases." Id., at 1320.

The District Court concluded by directing petitioners to draft, for the court's approval, "a comprehensive program for dealing adequately with civilian complaints," to be formulated along the following "guidelines" suggested by the court:

"(1) Appropriate revision of police manuals and rules of procedure spelling out in some detail, in simple language, the 'dos and don'ts' of permissible conduct in dealing with civilians (for example, manifestations of racial bias, derogatory remarks, offensive language, etc.; unnecessary damage to property and other unreasonable conduct in executing search warrants; limitations on pursuit of persons charged only with summary offenses; recording and processing civilian complaints, etc.). (2) Revision of procedures for processing complaints against police, including (a) ready availability of forms for use by civilians in lodging complaints against police officers; (b) a screening procedure for eliminating frivolous complaints; (c) prompt and adequate investigation of complaints; (d) adjudication of nonfrivolous complaints by an impartial individual or body, insulated so far as practicable from chain of command pressures, with a fair opportunity afforded the complainant to present his complaint, and to the police officer to present his defense; and (3) prompt notification to the concerned parties, informing them of the outcome." Id., at 1321.

While noting that the "guidelines" were consistent with "generally recognized minimum standards" and imposed "no substantial burdens" on the police department, the District Court emphasized that respondents had no constitutional right to improved police procedures for handling civilian complaints. But given that violations of constitutional rights of citizens occur in "unacceptably" high numbers, and are likely to continue to occur, the court-mandated revision was a "necessary first step" in attempting to prevent future abuses. Ibid. On petitioners' appeal the Court of Appeals affirmed.

II

These actions were brought, and the affirmative equitable relief fashioned, under the Civil Rights Act of 1871, 42 U.S.C. § 1983. It provides that "[e]very person who, under color of [law] subjects, or causes to be subjected, any... person within the jurisdiction [of the United States] to the deprivation of any rights... secured by the Constitution and laws, shall be liable to the party injured in an action at law [or] suit in equity...." The plain words of the statute impose liability -- whether in the form of payment of redressive damages or being placed under an injunction -- only for conduct which "subjects, or causes to be subjected" the complainant to a deprivation of a right secured by the Constitution and laws.

The findings of fact made by the District Court at the conclusion of these two parallel trials -- in sharp contrast to that which respondents sought to prove with respect to petitioners -- disclose a central paradox which permeates that court's legal conclusions. Individual police officers not named as parties to the action were found to have violated the constitutional rights of particular individuals, only a few of whom were parties plaintiff. As the facts developed, there was no affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by petitioners -- express or otherwise -- showing their authorization or approval of such misconduct. Instead, the sole causal connection found by the District Court between petitioners and the individual respondents was that in the absence of a change in police disciplinary procedures, the incidents were likely to continue to occur, not with respect to them but as to the members of the classes they represented. In sum, the genesis of this lawsuit -- heated dispute between individual citizens and certain policemen -- has evolved into an attempt by the federal judiciary to resolve a "controversy" between the entire citizenry of Philadelphia and the petitioning elected and appointed officials over what steps might, in the Court of Appeals' words, "[appear] to have the potential for prevention of future police misconduct." 506 F.2d, at 548. The lower courts have, we think, overlooked several significant decisions of this Court in validating this type of litigation and the relief ultimately granted.

A

We first of all entertain serious doubts whether on the facts as found there was made out the requisite Art. III case or controversy between the individually named respondents and petitioners. In O'Shea v. Littleton, 414 U.S. 488 (1974), the individual respondents, plaintiffs in the District Court, alleged that petitioners, a county magistrate and judge, had embarked on a continuing, intentional practice of racially discriminatory bond setting, sentencing, and assessing of jury fees. No specific instances involving the individual respondents were set forth in the prayer for injunctive relief against the judicial officers. And even though respondents' counsel at oral argument had stated that some of the named respondents had in fact "suffered from the alleged unconstitutional practices," the Court concluded that "[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects." Id., at 495-496. The Court further recognized that while "past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury," the attempt to anticipate under what circumstances the respondents there would be made to appear in the future before petitioners "takes us into the area of speculation and conjecture." Id., at 496-497. These observations apply here with even more force, for the individual respondents' claim to "real and immediate" injury rests not upon what the named petitioners might do to them in the future -- such as set a bond on the basis of race -- but upon what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman's perception of departmental disciplinary procedures. This hypothesis is even more attenuated than those allegations of future injury found insufficient in O'Shea to warrant invocation of federal jurisdiction. Thus, insofar as the individual respondents were concerned, we think they lacked the requisite "personal stake in the outcome," Baker v. Carr, 369 U.S. 186, 204 (1962), i.e., the order overhauling police disciplinary procedures.

B

That conclusion alone might appear to end the matter, for O'Shea also noted that "if none of the named plaintiffs... establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class" which they purport to represent. 414 U.S., at 494. But, unlike O'Shea, this case did not arise on the pleadings. The District Court, having certified the plaintiff classes, bridged the gap between the facts shown at trial and the classwide relief sought with an unprecedented theory of § 1983 liability. It held that the classes' § 1983 actions for equitable relief against petitioners were made out on a showing of an "unacceptably high" number of those incidents of constitutional dimension -- some 20 in all -- occurring at large in a city of three million inhabitants, with 7,500 policemen.

Nothing in Hague v. CIO , 307 U.S. 496 (1939), the only decision of this Court cited by the District Court,⁸ or any other case from this Court, supports such an open-ended construction of § 1983. In Hague, the pattern of police misconduct upon which liability and injunctiverelief were grounded was the adoption and enforcement of deliberate policies by the defendants there (including the Mayor and the Chief of Police) of excluding and removing the plaintiff's labor organizers and forbidding peaceful communication of their views to the citizens of Jersey City. These policies were implemented "by force and violence" on the part of individual policemen. There was no mistaking that the defendants proposed to continue their unconstitutional policies against the members of this discrete group.

Likewise, in Allee v. Medrano , 416 U.S. 802 (1974), relied upon by the Court of Appeals and respondents here, we noted:

"The complaint charged that the enjoined conduct was but one part of a single plan by the defendants, and the District Court found a pervasive pattern of intimidation in which the law enforcement authorities sought to suppress appellees' constitutional rights. In this blunderbuss effort the police not only relied on statutes... found constitutionally deficient, but concurrently exercised their authority under valid laws in an unconstitutional manner." Id., at 812 (emphasis added).

The numerous incidents of misconduct on the part of the named Texas Rangers, as found by the District Court and summarized in this Court's opinion, established beyond peradventure not only a "persistent pattern" but one which flowed from an intentional, concerted, and indeed conspiratorial effort to deprive the organizers of their First Amendment rights and place them in fear of coming back. Id., at 814-815.

Respondents stress that the District Court not only found an "unacceptably high" number of incidents but held, as did the Court of Appeals, that "when a pattern of frequent police violations of rights is shown, the law is clear that injunctive relief may be granted." 357 F. Supp., at 1318 (emphasis added). However, there was no showing that the behavior of the Philadelphia police was different in kind or degree from that which exists elsewhere; indeed, the District Court found "that the problems disclosed by the record... are fairly typical of [those] afflicting police departments in major urban areas." Ibid. Thus, invocation of the word "pattern" in a case where, unlike Hague and Medrano , the defendants are not causally linked to it, is but a distant echo of the findings in those cases. The focus in Hague and Medrano was not simply on the number of violations which occurred but on the common thread running through them: a "pervasive pattern of intimidation" flowing from a deliberate plan by the named defendants to crush the nascent labor organizations. Medrano , supra, at 812. The District Court's unadorned finding of a statistical pattern is quite dissimilar to the factual settings of these two cases.

The theory of liability underlying the District Court's opinion, and urged upon us by respondents, is that even without a showing of direct responsibility for the actions of a small percentage of the police force, petitioners' failure to act in the face of a statistical pattern is indistinguishable from the active conduct enjoined in Hague and Medrano . Respondents posit a constitutional "duty" on the part of petitioners (and a corresponding "right" of the citizens of Philadelphia) to "eliminate" future police misconduct; a "default" of that affirmative duty being shown by the statistical pattern, the District Court is empowered to act in petitioners' stead and take whatever preventive measures are necessary, within its discretion, to secure the "right" at issue. Such reasoning, however, blurs accepted usages and meanings in the English language in a way which would be quite inconsistent with the words Congress chose in § 1983. We have never subscribed to these amorphous propositions, and we decline to do so now.

Respondents claim that the theory of liability embodied in the District Court's opinion is supported by desegregation cases such as Swann v. Charlotte-Mecklenburg Board of Education , 402 U.S. 1 (1971). But this case, and the long line of precedents cited therein, simply reaffirmed the body of law originally enunciated in Brown v. Board of Education, 347 U.S. 483 (1954):

"Nearly 17 years ago this Court held, in explicit terms, that state-imposed segregation by race in public schools denies equal protection of the laws. At no time has the Court deviated in the slightest degree from that holding or its constitutional underpinnings. . . . .

"Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Swann, supra, at 11, 15.

Respondents, in their effort to bring themselves within the language of Swann, ignore a critical factual distinction between their case and the desegregation cases decided by this Court. In the latter, segregation imposed by law had been implemented by state authorities for varying periods of time, whereas in the instant case the District Court found that the responsible authorities had played no affirmative part in depriving any members of the two respondent classes of any constitutional rights. Those against whom injunctive relief was directed in cases such as Swann and Brown were not administrators and school board members who had in their employ a small number of individuals, which latter on their own deprived black students of their constitutional rights to a unitary school system. They were administrators and school board members who were found by their own conduct in the administration of the school system to have denied those rights. Here, the District Court found that none of the petitioners had deprived the respondent classes of any rights secured under the Constitution. Under the well-established rule that federal "judicial powers may be exercised only on the basis of a constitutional violation," Swann , supra, at 16, this case presented no occasion for the District Court to grant equitable relief against petitioners.

C

Going beyond considerations concerning the existence of a live controversy and threshold statutory liability, we must address an additional and novel claim advanced by respondent classes. They assert that given the citizenry's "right" to be protected from unconstitutional exercises of police power, and the "need for protection from such abuses," respondents have a right to mandatory equitable relief in some form when those in supervisory positions do not institute steps to reduce the incidence of unconstitutional police misconduct. The scope of federal equity power, it is proposed, should be extended to the fashioning of prophylactic procedures for a state agency designed to minimize this kind of misconduct on the part of a handful of its employees. But on the facts of this case, not only is this novel claim quite at odds with the settled rule that in federal equity cases "the nature of the violation determines the scope of the remedy," ibid., important considerations of federalism are additional factors weighing against it. Where, as here, the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the "special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law." Stefanelli v. Minard, 342 U.S. 117, 120 (1951), quoted in O'Shea v. Littleton, 414 U.S., at 500.

Section 1983 by its terms confers authority to grant equitable relief as well as damages, but its words "allow a suit in equity only when that is the proper proceeding for redress, and they refer to existing standards to determine what is a proper proceeding." Giles v. Harris, 189 U.S. 475, 486 (1903) (Holmes, J.). Even in an action between private individuals, it has long been held that an injunction is "to be used sparingly, and only in a clear and plain case." Irwin v. Dixion, 9 How. 10, 33 (1850). When a plaintiff seeks to enjoin the activity of a government agency, even within a unitary court system, his case must contend with "the well-established rule that the Government has traditionally been granted the widest latitude in the 'dispatch of its own internal affairs,'Cafeteria Workers v. McElroy , 367 U.S. 886, 896 (1961)," quoted in Sampson v.Murray , 415 U.S. 61, 83 (1974). The District Court's injunctive order here, significantly revising the internal procedures of the Philadelphia police department, was indisputably a sharp limitation on the department's "latitude in the 'dispatch of its own internal affairs.'"

When the frame of reference moves from a unitary court system, governed by the principles just stated, to a system of federal courts representing the Nation, subsisting side by side with 50 state judicial, legislative, and executive branches, appropriate consideration must be given to principles of federalism in determining the availability and scope of equitable relief. Doran v. Salem Inn, Inc., 422 U.S. 922, 928 (1975).

So strongly has Congress weighted this factor of federalism in the case of a state criminal proceeding that it has enacted 28 U.S.C. § 2283 to actually deny to the district courts the authority to issue injunctions against such proceedings unless the proceedings come within narrowly specified exceptions. Even though an action brought under § 1983, as this was, is within those exceptions, Mitchum v. Foster , 407 U.S. 225 (1972), the underlying notions of federalism which Congress has recognized in dealing with the relationships between federal and state courts still have weight. Where an injunction against a criminal proceeding is sought under § 1983, "the principles of equity, comity, and federalism" must nonetheless restrain a federal court. 407 U.S., at 243.

But even where the prayer for injunctive relief does not seek to enjoin the state criminal proceedings themselves, we have held that the principles of equity nonetheless militate heavily against the grant of an injunction except in the most extraordinary circumstances. In O'Shea v. Littleton , supra, at 502, we held that "a major continuing intrusion of the equitable power of the federal courts into the daily conduct of state criminal proceedings is in sharp conflict with the principles of equitable restraint which this Court has recognized in the decisions previously noted." And the same principles of federalism may prevent the injunction by a federal court of a state civil proceeding once begun. Huffman v. Pursue, Ltd. , 420 U.S. 592 (1975).

Thus the principles of federalism which play such an important part in governing the relationship between federal courts and state governments, though initially expounded and perhaps entitled to their greatest weight in cases where it was sought to enjoin a criminal prosecution in progress, have not been limited either to that situation or indeed to a criminal proceeding itself. We think these principles likewise have applicability where injunctive relief is sought, not against the judicial branch of the state government, but against those in charge of an executive branch of an agency of state or local governments such as respondents here. Indeed, in the recent case of Mayor v. Educational Equality League , 415 U.S. 605 (1974), in which private individuals sought injunctive relief against the Mayor of Philadelphia, we expressly noted the existence of such considerations, saying: "There are also delicate issues of federal-state relationships underlying this case." Id., at 615.

Contrary to the District Court's flat pronouncement that a federal court's legal power to "supervise the functioning of the police department... is firmly established," it is the foregoing cases and principles that must govern consideration of the type of injunctive relief granted here. When it injected itself by injunctive decree into the internal disciplinary affairs of this state agency, the District Court departed from these precepts.

For the foregoing reasons the judgment of the Court of Appeals which affirmed the decree of the District Court is

Reversed.

Mr. Justice Stevens took no part in the consideration or decision of this case.

Mr. Justice Blackmun, with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting.

To be sure, federal-court intervention in the daily operation of a large city's police department, as the Court intimates, is undesirable and to be avoided if at all possible. The Court appropriately observes, however, ante, at 367, that what the Federal District Court did here was to engage in a careful and conscientious resolution of often sharply conflicting testimony and to make detailed findings of fact, now accepted by both sides, that attack the problem that is the subject of the respondents' complaint. The remedy was one evolved with the defendant officials' assent, reluctant though that assent may have been, and it was one that the police department concededly could live with. Indeed, the District Court, in its memorandum of December 18, 1973, stated that "the resolution of all the disputed items was more nearly in accord with the defendants' position than with the plaintiffs' position," and that the relief contemplated by the earlier orders of March 14, 1973, see COPPAR v. Rizzo, 357 F. Supp. 1289 (ED Pa.), "did not go beyond what the defendants had always been willing to accept." App. 190a. No one, not even this Court's majority, disputes the apparent efficacy of the relief or the fact that it effectuated a betterment in the system and should serve to lessen the number of instances of deprival of constitutional rights of members of the respondent classes. What is worrisome to the Court is abstract principle, and, of course, the Court has a right to be concerned with abstract principle that, when extended to the limits of logic, may produce untoward results in other circumstances on a future day. See Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 (1908) (Holmes, J.).

But the District Court here, with detailed, careful, and sympathetic findings, ascertained the existence of violations of citizens' constitutional rights, of a pattern of that type of activity, of its likely continuance and recurrence, and of an official indifference as to doing anything about it. The case, accordingly, plainly fits the mold of Allee v. Medrano , 416 U.S. 802 (1974), and Hague v. CIO , 307 U.S. 496 (1939), despite the observation, 357 F. Supp., at 1319, that the evidence "does not establish the existence of any overall Police Department policy to violate the legal and constitutional rights of citizens, nor to discriminate on the basis of race" (emphasis supplied). I am not persuaded that the Court's attempt to distinguish those cases from this one is at all successful. There must be federal relief available against persistent deprival of federal constitutional rights even by (or, perhaps I should say, particularly by) constituted authority on the state side.

The Court entertains "serious doubts," ante, at 371-372, as to whether there is a case or controversy here, citing O'Shea v. Littleton , 414 U.S. 488 (1974). O'Shea , however, presented quite different facts. There, thepl aintiff-respondents had alleged a fear of injury from actions that would be subsequent to some future, valid arrest. The Court said:

"We assume that respondents will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said to be followed by petitioners.... Under these circumstances, where respondents do not claim any constitutional right to engage in conduct proscribed by therefore presumably permissible state laws, or indicate that it is otherwise their intention to so conduct themselves, the threat of injury from the alleged course of conduct they attack is simply too remote to satisfy the case-or-controversy requirement and permit adjudication by a federal court." Id., at 497-498.

Here, by contrast, plaintiff-respondents are persons injured by past unconstitutional conduct (an allegation not made in the O'Shea complaint) and fear injury at the hands of the police regardless of whether they have violated a valid law.

To the extent that Part II-A of the Court's opinion today indicates that some constitutional violations might be spread so extremely thin as to prevent any individual from showing the requisite case or controversy, I must agree. I do not agree, however, with the Court's substitution of its judgment for that of the District Court on what the evidence here shows. The Court states that what was shown was minimal, involving only a few incidents out of thousands of arrests in a city of several million population. Small as the ratio of incidents to arrests may be, the District Court nevertheless found a pattern of operation, even if no policy, and one sufficiently significant that the violations "cannot be dismissed as rare, isolated instances." 357 F. Supp., at 1319. Nothing the Court has said demonstrates for me that there is no justification for that finding on this record. The Court's criticism about numbers would be just as forceful, or would miss the mark just as much, with 100 incidents or 500 or even 3,000, when compared with the overall number of arrests made in the city of Philadelphia. The pattern line will appear somewhere. The District Court drew it this side of the number of proved instances. One properly may wonder how many more instances actually existed but were unproved because of the pressure of time upon the trial court, or because of reluctant witnesses, or because of inherent fear to question constituted authority in any degree, or because of a despairing belief, unfounded though it may be, that nothing can be done about it anyway and that it is not worth the effort. That it was worth the effort is convincingly demonstrated by the result in the District Court, by the affirmance, on the issues before us, by a unanimous panel of the Third Circuit, and by the support given the result below by the Commonwealth of Pennsylvania, the Philadelphia Bar Association, The Greater Philadelphia Movement, and the other entities that have filed briefs as amici curiae here in support of the respondents.

The Court today appears to assert that a state official is not subject to the strictures of 42 U.S.C. § 1983 unless he directs the deprivation of constitutional rights. Ante, at 375-377. In so holding, it seems to me, the Court ignores both the language of § 1983 and the case law interpreting that language. Section 1983 provides a cause of action where a person acting under color of state law "subjects, or causes to be subjected," any other person to a deprivation of rights secured by the Constitution and laws of the United States. By its very words, § 1983 reaches not only the acts of an official, but also the acts of subordinates for whom he is responsible. In Monroe v. Pape, 365 U.S. 167 (1961), the Court said that § 1983 "should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions," id., at 187, and:

"It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by state agencies." Id., at 180. (Emphasis added.)

I do not find it necessary to reach the question under what circumstances failure to supervise will justify an award of money damages, or whether an injunction is authorized where the superior has no consciousness of the wrongs being perpetrated by his subordinates.¹ It is clear that an official may be enjoined from consciously permitting his subordinates, in the course of their duties, to violate the constitutional rights of persons with whom they deal. In rejecting the concept that the official may be responsible under § 1983, the Court today casts aside reasoned conclusions to the contrary reached by the Courts of Appeals of 10 circuits.²

In the instant case, the District Court found that although there was no departmental policy of racial discrimination, "such violations do occur, with such frequency that they cannot be dismissed as rare, isolated instances; and that little or nothing is done by the city authorities to punish such infractions, or to prevent their recurrence," 357 F. Supp., at 1319, and that it "is the policy of the department to discourage the filing of such complaints, to avoid or minimize the consequences of proven police misconduct, and to resist disclosure of the final disposition of such complaints." Id., at 1318. Needless to say, petitioners were under a statutory duty to supervise their subordinates. See Philadelphia Home Rule Charter, c. 2, § 5-200. I agree with the District Court that its findings are sufficient to bring petitioners within the ambit of § 1983.

Further, the applicability of § 1983 to controlling officers allows the district courts to avoid the necessity of injunctions issued against individual officers and the consequent continuing supervision by the federal courts of the day-to-day activities of the men on the street. The District Court aptly stated:

"Respect and admiration for the performance of the vast majority of police officers cannot justify refusal to confront the reality of the abuses which do exist. But deference to the essential role of the police in our society does mandate that intrusion by the courts into this sensitive area should be limited, and should be directed toward insuring that the police themselves are encouraged to remedy the situation." 357 F. Supp., at 1320.

I would regard what was accomplished in this case as one of those rightly rare but nevertheless justified instances -- just as Allee and Hague -- of federal-court "intervention" in a state or municipal executive area. The facts, the deprival of constitutional rights, and the pattern are all proved in sufficient degree. And the remedy is carefully delineated, worked out within the administrative structure rather than superimposed by edict upon it, and essentially, and concededly, "livable." In the City of Brotherly Love -- or in any other American city -- no less should be expected. It is a matter of regret that the Court sees fit to nullify what so meticulously and thoughtfully has been evolved to satisfy an existing need relating to constitutional rights that we cherish and hold dear.

Rizzo v. Goode Transcript

Notes on Rizzo v. Goode

1. Among other things, Rizzo v. Goode addresses whether individual state and local government officials are suable under Section 1983 for constitutional violations directly caused by subordinate officials under their supervision. On what basis does the Supreme Court find that Section 1983 does not impose liability upon supervisory officials on a pure respondeat superior theory? Is this consistent with “the background of tort liability”? See Carter v. Carlson, 447 F.2d 358, 370 n.39 (D.C. Cir. 1971), rev’d on other grounds, 409 U.S. 418 (1973) (“a superior officer is not subject to vicarious liability for the torts of his subordinate, whether at common law or under § 1983, because they are both servants of the same employer.”). At common law, who would be held vicariously liable for the constitutional harm caused by the line officers in Rizzo?

2. May a supervisor be held vicariously liable under Section 1983 for the act of a subordinate if state law authorizes such liability? In Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979), the United States Court of Appeals for the Fifth Circuit, relying on the Supreme Court’s repudiation of vicarious municipal liability in Monell v. New York City Department of Social Services , 436 U.S. 658 (1978) (see Chapter III, infra), refused to apply a state statute that created respondeat superior liability to an action under Section 1983:

   After parsing the language used in § 1983 and tracing legislative history, the Monell , 436 U.S. 658 (1978) Court concluded that the official sued (in that case the city government) could not be held liable unless action by the officer or pursuant to this official policy caused a constitutional tort. In other words, it rejected respondeat superior as a theory of recovery under § 1983. We interpret Monell’s ruling as uniformly applicable to § 1983 actions in any state. Using the varying contours of local law to define the reach of a federal statutory right of action would make the availability of vicarious liability depend upon the location and, in some states, the nature of the tort. These incidental and irrelevant vagaries should not mold the contours of this national constitutional tort. Adopting each state’s law into § 1983 would create a lex loci doctrine of respondeat superior granted or withheld on the basis of state rather than federal policy.

   The language of the statute governing the remedies available in civil rights actions, 42 U.S.C. § 1988, supports our conclusion that state vicarious liability doctrines are inapplicable in § 1983 suits. Section 1988 allows state remedies to supplement remedies available under federal law when the federal remedies “are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against the law.” Section 1988 also provides that the state remediesadopted must not be inconsistent with the Constitution and the laws of the United States. Allowing Louisiana’s vicarious liability rules to govern this case would be directly contrary to Monell's construction of § 1983, and thus to the requirements of § 1988.
   

   See also Jett v. Dallas Independent School District , 491 U.S. 701 (1989) (rejecting use of 42 U.S.C. § 1988 to impose vicarious municipal liability for racial discrimination under 42 U.S.C. § 1981.)

3. The Rizzo Court found that “there was no affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by petitioners--express or otherwise--showing their authorization or approval of such misconduct.” 423 U.S. at 371. The lower federal courts have most readily deemed Rizzo’s “affirmative link” requirement satisfied where the supervisor expressly or tacitly authorized the very conduct that offends the Constitution. See Sanders v. Kennedy , 497 F.2d 478, 482 (9th Cir. 1986) (Police chief and city council members were improperly dismissed from an action where the complaint alleged that the plaintiff’s “rights were violated pursuant to an ‘official policy, practice and custom’ of the City of Anaheim and its Police Department.”); Maggette v. Dalsheim , 709 F.2d 800, 803 (2nd Cir. 1983) (personal involvement requirement satisfied by allegations that prison superintendent “promulgated and ordered the carrying out of policies that were themselves violations of the constitutional rights.”).

4. While the authorization theory generally is founded upon approval in advance of the subordinate’s unconstitutional act, may liability be predicated on the supervisor’s failure to remedy the constitutional violation after it occurs?

   In Williams v. Smith, 781 F.2d 319 (2nd Cir. 1986), a prisoner averred that he had been unconstitutionally denied the opportunity to present a witness at a prison disciplinary hearing. He sued the prison superintendent who, in addition to affirming the disciplinary action, was directly responsible for the proper conduct of disciplinary proceedings at the prison. The court of appeals reversed the lower court’s dismissal of the action against the superintendent, reasoning that the plaintiff had a right to prove that the supervisory official “actively affirm[ed] the conviction on appeal” or accepted “a custom or policy at Attica allowing that unconstitutional practice to occur.” Id. at 324. Contra Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (mere review of result of disciplinary hearing does not establish affirmative link required to hold supervisor liable for due process violations at the hearing.)

5. One of the frequently sought means of meeting Rizzo’s “affirmative link” requirement is the theory that the supervisor has failed to properly train subordinate officials, who in turn transgressed constitutional norms. In Meade v. Grubbs, 841 F.2d 1512 (10th Cir. 1988), plaintiff alleged that he had been beaten by deputies while in police custody and sued the sheriff for failing to properly train the deputies. The court of appeals accepted the theory of liability, ruling that “[a] superior or municipality may be held liable where there is essentially a complete failure to train, or training that is so reckless or grossly negligent that future misconduct is almost inevitable.” Id. at 1528.

   While generally approving of liability for failure to train, some lower federal courts have stricken failure to train claims premised on a single instance of misconduct. Colburn v. Upper Darby Township , 838 F.2d 663, 673 (3rd Cir. 1988), cert. denied, 489 U.S. 1065 (1989). The viability of and standards for supervisory liability founded on a failure to train theory now may be governed by the Supreme Court’s analysis of municipal liability for failure to train in City of Canton v. Harris , Chapter III, infra.

6. In McClelland v. Facteau , 610 F.2d 693 (10th Cir. 1979), Cecil McClelland brought a Section 1983 action against two police chiefs for various invasions of rights arising out of his arrest and incarceration prior to posting bond. The police chiefs did not personally participate in the asserted violations. McClelland claimed, however, that the deprivation of his rights occurred because of the chiefs’ failure to act despite knowledge of prior instances of misconduct by the subordinate officials who McClelland encountered. Reversing the district court’s grant of summary judgment in favor of the police chiefs, the court of appeals accepted McClelland’s theory of liability:

   We agree with those courts that have found a cause of action under section 1983 when the defendant was in a position of responsibility, knew or should have known of the misconduct, and yet failed to act to prevent future harm. E.g., Sims v. Adams, 537 F.2d 829 (5th Cir. 1976); Wright v. McMann, 460 F.2d 126 (2d Cir.), cert. denied, 409 U.S. 885, 93 S. Ct. 116, 34 L.Ed.2d 141 (1972). The standard to be applied is the conduct of a reasonable person, under the circumstances, in the context of the authority of each police chief and what he knew or should have known. We find there is a genuine issue of fact whether defendants breached this duty.

   The rules and regulations cited of both police hierarchies indicate that the immediate and direct duty to supervise has been delegated, but the police chiefs have retained the ultimate responsibility for what goes on in the departments. The perimeters of their duty are uncertain and must be determined at trial.

   In order to establish a breach here, plaintiff must show that the defendant was adequately put on notice of prior misbehavior. Although both Schmerheim and Vigil denied any knowledge of wrongdoing by the three subordinates, McClelland countered by tendering newspaper articles and affidavits indicating that it was well known that rights were being violated in the Farmington jail and by state police officer Facteau, and showing Schmerheim was a party in two lawsuits involving the deaths of prisoners incarcerated in Farmington jail. Distant rumors that are too vague to prompt action by reasonable persons, or information that is reasonably believed to lack credibility do not provide sufficient notice... We hold, however that McClelland’s showing was adequate to raise an issue of fact on the sufficiency of notice because the accusations contained in the material were recent and serious...

   If publicity or police misconduct was widespread and credible it may be inferred police chiefs who admitted reading the daily newspapers knew of it. They had ultimate responsibility for what went on in the departments, and it might be found that they should and could have taken steps that would have prevented the deprivation of McClelland’s rights. Defendants can, of course, refute these inferences at trial, but we cannot hold that they are entitled to judgment now as a matter of law.
   610 F.2d at 697-98.

   Can the failure to prevent recurrence of misconduct theory adopted in McClelland be reconciled with Rizzo v. Goode? How much notice of prior wrongs must the supervisor possess before he is obligated to intervene to prevent a recurrence of the misconduct? Compare Febus-Rodriguez v. Betancourt-Lebron , 14 F.3d 87 (1st Cir. 1994) (five previous unrelated complaints against an officer do not provide notice to supervisor of likelihood of constitutional violation) with Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir. 1989) (superintendent liable for failing to act in face of knowledge of 13 citizen complaints and prior incidents of brutality). How many deprivations of constitutional rights were proven in Rizzo? How many violations would the Rizzo plaintiffs have had to prove to establish an actionable pattern?

7. While the McClelland court appeared to endorse supervisory liability for negligent conduct, other courts have erected a more onerous standard of culpability:

   [S]upervisors who are merely negligent in failing to detect and prevent subordinates’ misconduct are not liable, because negligence is no longer culpable under section 1983...Gross negligence is not enough either. The supervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see. They must in other words act either knowingly or with deliberate or reckless indifference.

   Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988). See also Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994) (“One way in which a supervisor’s action may [render him liable] is by formulating a policy, or engaging in a custom, that leads to the challenged occurrence...Thus, even if a supervisor lacks actual knowledge of censurable conduct, he may be liable for the foreseeable consequences of such conduct if he would have known of it but for his deliberate indifference or willful blindness, and he had the power and authority to alleviate it.”)

   1. Must the plaintiff prove that the supervisor acted with the requisite culpability to establish a violation of the plaintiff’s constitutional right? See Chapter II(B), supra. Is it sufficient to prove that the supervisor breached an independent duty to prevent harm created by § 1983, even if the supervisor did not act with sufficient culpability to contravene the Constitution?

      The difference between the two interpretations may be subtle but the choice of interpretation makes a real difference in many cases. Suppose, for example, that a supervisor is grossly negligent with respect to preventing subordinates from engaging in purposeful racial discrimination in violation of equal protection. Under the Fourteenth Amendment interpretation, the supervisor would not be liable for an equal protection violation because he or she did not personally engage in purposeful racial discrimination even though the subordinates did. But under the causation interpretation, the supervisor may well be liable depending on the state of mind required for the § 1983 duty.

      [T]he circuits did not explicitly address supervisory liability in terms of either of these interpretations. They often spoke of gross negligence, recklessness, and deliberate indifference as requirements for supervisory liability without making clear whether these requirements came from the particular constitutional provision or § 1983. However. . . , the Fourteenth Amendment interpretation [is] the better interpretation as a matter of § 1983's language, its legislative history, and its underlying policies. . . . .[T]his approach [is] more consistent than the negligence/causation approach with Parratt’s holding that § 1983 itself does not have an independent state of mind requirement apart from the underlying constitutional violation.

      
      Sheldon Nahmod, Civil Rights and Civil Liberties Litigation, § 3.97 (4th ed. 2000). See Johnson v. Martin, 195 F. 3d 1208, 1219 (10th Cir. 1999)(" ‘Neither simple nor gross negligence implies an intentional and deliberative violation of constitutional rights, and consequently neither form of negligence satisfies the scienter requirement of § 1983.' On the other hand, ‘recklessness . . . is generally regarded as satisfying the scienter requirement of section 1983 because it requires proof that the defendant focused upon the risk of unconstitutional conduct and deliberately assumed or acquiesced in such risk.'").

   2. In addition to demanding proof of the supervisor’s personal involvement, the courts have required that the plaintiff establish that the supervisor’s action or inaction was a cause of the constitutional violation:

      Causation is established when the plaintiff demonstrates an “affirmative causal link” between the supervisor’s inaction and the harm suffered by the plaintiff...This concept encompasses cause in fact and proximate cause...,the proof of causation may be direct...where the policy commands the injury of which the plaintiff complains...[or] may be supplied by the tort principle that holds a person liable for the natural consequences of his actions.’

      Shaw v. Stroud, cert. denied, 513 U.S. 813(1994). If the plaintiff has established that the supervisor’s action or inaction was a cause of the subordinate’s invasion of constitutional guarantees, is there any reason to require culpability greater than negligence? See Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) ("The causal connection may be established and supervisory liability imposed where the supervisor's improper ‘custom or policy resulted in deliberate indifference to constitutional rights.'"). Is it inequitable to hold a government supervisor liable for failing to act as a reasonable official under all the circumstances where that unreasonable conduct causes a subordinate to violate the Constitution? See Kit Kinports, The Buck Does Not Stop Here: Supervisory Liability in Section 1983 Cases, 1997 U. Ill. L. Rev. 147, 184-92 (1997) (Advocating uniform negligence standards of culpability where Constitutional violation is a foreseeable result of supervisor's negligence.)

8. May the supervisor be held liable even if the official who physically inflicted the harm did not violate the Constitution?

   In Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994), cert. denied 115 U.S. 1097 (1995), plaintiff sued Los Angeles Police Officer Daniel Bunch as well as Police Chief Darryl Gates to recover damages after a police dog, Volker, bit Chew, who had fled after being stopped for a traffic violation. In considering a defense of issue preclusion raised by Chief Gates, the court determined the jury could find Officer Bunch not liable for his handling of the dog yet still hold Chief Gates responsible:

   A judgment that Bunch is not liable for releasing Volker, given all the circumstances, would not preclude a judgment that by implementing a policy of training and using the police dogs to attack unarmed, non-resisting suspects, including Chew, the remaining defendants caused a violation of Chew’s constitutional rights. Supervisory liability may be imposed under Section 1983 notwithstanding the exoneration of the officer whose actions are the immediate or precipitating cause of the constitutional injury...

   The jury in this case could have concluded that it was reasonable for Bunch to release Volker--even knowing what he was likely to do to Chew--given the fact that the procedures adopted by the city left him with no other means of apprehending the suspect that involved less risk of bodily injury to himself or the suspect.

   
   27 F.3d at 1438.

9. Absent proof of habit, evidence that a state official has violated the Constitution on prior occasions generally will not be admissible in a Section 1983 action. See Fed.R.Evid. 404. If plaintiff also joins the official’s supervisor as a defendant on a theory of failing to prevent recurrence of unconstitutional acts, however, may evidence of the subordinate’s previous constitutional violations be admitted to establish the supervisor had notice of these violations?

   In Fletcher v. O’Donnell, 867 F.2d 791 (3rd Cir.), cert. denied, 492 U.S. 919 (1989), plaintiff alleged that police officer O’Donnell had used excessive force in the course of an arrest. He sued the City of Allentown as well as Officer O’Donnell, alleging that the officer acted pursuant to the City’s custom of tolerating use of excessive force.

   In order to establish the city’s custom, plaintiff attempted to introduce evidence that Officer O’Donnell had used excessive force on prior occasions. The trial court refused to admit the evidence, ruling that it not only was irrelevant to the claim against O’Donnell, but also would unduly prejudice him. The court of appeals reversed:

   [P]rejudice was not a valid reason for preventing Fletcher from proving a custom of toleration of use of excessive force by using the only evidence which would suffice for that purpose. There were other means available to protect O’Donnell from such prejudice, including a limiting instruction. Indeed the court could have heard the evidence outside the presence of the jury in the first instance, in order to determine whether Fletcher could establish a prima facie case of prejudice. Finally, the court could even consider a severance.
   Id. at 794.

Martinez v. California

The two federal questions that appellants ask us to decide are (1) whether the Fourteenth Amendment invalidates a California statute granting absolute immunity to public employees who make parole-release determinations, and (2) whether such officials are absolutely immune from liability in an action brought under the federal Civil Rights Act of 1871, 42 U. S. C. § 1983. We agree with the California Court of Appeal that the state statute is valid when applied to claims arising under state law, and we conclude that appellants have not alleged a claim for relief under federal law.

The case arises out of the murder of a 15-year-old girl by a parolee. Her survivors brought this action in a California court claiming that the state officials responsible for the parole-release decision are liable in damages for the harm caused by the parolee.

The complaint alleged that the parolee, one Thomas, was convicted of attempted rape in December 1969. He was first committed to a state mental hospital as a "Mentally Disordered Sex Offender not amenable to treatment" and thereafter sentenced to a term of imprisonment of 1 to 20 years, with a recommendation that he not be paroled. Nevertheless, five years later, appellees decided to parole Thomas to the care of his mother. They were fully informed about his history, his propensities, and the likelihood that he would commit another violent crime. Moreover, in making their release determination they failed to observe certain "requisite formalities." Five months after his release Thomas tortured and killed appellants' decedent. We assume, as the complaint alleges, that appellees knew, or should have known, that the release of Thomas created a clear and present danger that such an incident would occur. Their action is characterized not only as negligent, but also as reckless, willful, wanton and malicious. Appellants prayed for actual and punitive damages of $ 2 million.

The trial judge sustained a demurrer to the complaint and his order was upheld on appeal. 85 Cal. App. 3d 430, 149 Cal. Rptr. 519 (1978). After the California Supreme Court denied appellants' petition for a hearing, we noted probable jurisdiction. 441 U.S. 960.

II

We turn then to appellants' § 1983 claim that appellees, by their action in releasing Thomas, subjected appellants' decedent to a deprivation of her life without due process of law.⁷ It is clear that the California immunity statute does not control this claim even though the federal cause of action is being asserted in the state courts.⁸ We also conclude that it is not necessary for us to decide any question concerning the immunity of state parole officials as a matter of federal law because, as we recently held in Baker v. McCollan, 443 U.S. 137, "[the] first inquiry in any § 1983 suit . . . is whether the plaintiff has been deprived of a right 'secured by the Constitution and laws'" of the United States. The answer to that inquiry disposes of this case.

Appellants contend that the decedent's right to life is protected by the Fourteenth Amendment to the Constitution. But the Fourteenth Amendment protected her only from deprivation by the "State . . . of life . . . without due process of law." Although the decision to release Thomas from prison was action by the State, the action of Thomas five months later cannot be fairly characterized as state action. Regardless of whether, as a matter of state tort law, the parole board could be said either to have had a "duty" to avoid harm to his victim or to have proximately caused her death, see Grimm v. Arizona Bd. of Pardons and Paroles, 115 Ariz. 260, 564 P. 2d 1227 (1977); Palsgraf v. Long Island R. Co., 248 N. Y. 339, 162 N. E. 99 (1928), we hold that, taking these particular allegations as true, appellees did not "deprive" appellants' decedent of life within the meaning of the Fourteenth Amendment.

Her life was taken by the parolee five months after his release.¹⁰ He was in no sense an agent of the parole board. Cf. Scheuer v. Rhodes, 416 U.S. 232. Further, the 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 we do hold that at least under the particular circumstances of this parole decision, appellants' decedent's death is too remote a consequence of the parole officers' action to hold them responsible under the federal civil rights law. Although a § 1983 claim has been described as "a species of tort liability," Imbler v. Pachtman, 424 U.S. 409, 417, it is perfectly clear that not every injury in which a state official has played some part is actionable under that statute.

The judgment is affirmed.

So ordered.

Martinez v. State of California Transcript

Martinez v. State of California Briefs

Notes on Martinez v. California

Causation and Duty

1. Did the Court decide Martinez on the issue of causation? Was the parole board’s decision to release Thomas a cause in fact of the murder? Would the outcome have been different if the murder had occurred five hours after Thomas was released from custody? Would the parole officials be liable if they knew the Martinez’s daughter was Thomas’ intended victim?

2. In Taggart v. State of Washington, 822 P. 2d 243 (Wash. 1992), Victoria Taggart brought state tort claims against the State of Washington and its agents for negligently supervising parolee Louis Brock, who assaulted Taggart seven months after his release. Taggart and Brock had not met before the assault. The Washington Supreme Court, reversing the trial court's grant of defendant's motion for summary judgment, rejected the State's argument that the parole officials' actions were not a legal cause of assault:

   The State argues that Brock's assault on Taggart occurred "without any warning to responsible correctional officials." . . . The State contends that since the state correctional system does not have the resources to monitor parolees constantly in order to prevent them from committing unpredictable crimes, neither the State nor its agents should be deemed the legal cause of Taggart's injuries.

   We disagree. Brock had a long history of violent attacks against women and a consistently unfavorable prognosis for recovery from his psychiatric problems. . . . In light of such facts, the assertion that Brock's assault upon yet another woman occurred without warning is not credible. At most, the facts the State cites support the contention[ ] that . . . her actions to protect against Brock's dangerous propensities were reasonable under the circumstances, so that she did not breach any duty. We are unwilling to declare as a matter of law that no actions of the State or its agents were the legal cause of Taggart's injuries.

   Taggart, 822 P. 2d at 258-59

3. The Martinez Court noted that the parole board did not violate the Fourteenth Amendment “[r]egardless of whether, as a matter of state tort law, the parole board could be said to either have had a ‘duty’ to avoid harm to his victim or to have proximately caused her death.” Martinez at 285. Under what circumstances would an official’s actions be a proximate cause of the victim’s injury under state tort law yet not be a cause of the injury for purposes of an action under Section 1983?

   1. "Just as basis of liability concepts of tort law do not determine §1983 basis of liability requirements, proximate cause standards from tort law should not be dispositive of the §1983 extent of liability question. This is not to say, of course, that proximate cause standards from tort law are not useful. It turns out, in fact, that most circuits use a reasonable foreseeability standard adapted from tort law. The point, though, is that tort law purposes and interests are often different from §1983 purposes and interests, and thus tort law concepts should not be blindly applied."

      See S. Nahmod, Civil Rights and Civil Liberties Litigation (4th.ed. 2000) §§ 3.104.

   2. In Barnes v. Anderson, 202 F. 3d 150 (2d Cir. 1999), Michelle Barnes alleged that courtroom security officers caused her to miscarry by using excessive force in the course of an unconstitutional arrest. Because no expert witness had testified that defendants' actions had inflicted sufficient trauma to cause Mrs. Barnes to miscarry, the district court instructed the jury that it was not to consider the miscarriage on the issue of damages.

      The court of appeals affirmed:

      Although proximate causation in the §1983 context is a question of federal law, in determining the meaning of the concept we look to those state tort analogs, because the "‘Supreme Court has made it crystal clear that principles of causation borrowed from tort law are relevant to civil rights actions brought under §1983.' " [citations omitted] In this instance, the district court concluded that proof of proximate cause of a miscarriage required expert medical evidence specifically attributing that injury to the acts of which the plaintiff complained. We find this to be entirely consistent with analogous tort law doctrine.

      Barnes, 202 F. 3d at 158-59. See also Jackson v. Sauls, 206 F. 3d 1156, 1168 (11th Cir. 2000)("Although §1983 addresses only constitutional torts, §1983 defendants are, as in common law tort suits, responsible for the natural and foreseeable consequences of their actions. . . For damages to be proximately caused by a constitutional tort, a plaintiff must show that, except for that constitutional tort, such injuries and damages would not have occurred and further that such injuries were the reasonable foreseeable consequences of the tortious acts or omissions in issue").

   3. The lower federal courts have looked to state law in determining whether a supervisory official was personally involved in a constitutional violation under the “affirmative link” requirement of Rizzo v. Goode. See Meade v. Grubbs , 841 F.2d 1512, 1528 (10th Cir. 1988) (“Unless a supervisor has established or utilized an unconstitutional policy or custom, a plaintiff must show that the supervisory defendant breached a duty imposed by state or local law which caused the violation”); Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984), cert. denied, 470 U.S. 1035 (1985). (“The outer limits of liability in any given case are determined ultimately by pinpointing the persons in the decisionmaking chain whose deliberate indifference permitted the constitutional abuses to continue unchecked. The final determination ‘generally is one of fact, not law’...but state statutes fixing the administrator’s legal duties provide a useful guide in determining who had the responsibility and capability to end the offensive practices.”).

      The propriety of using state law to assign responsibility for constitutional invasions also arises in the Supreme Court’s attempt to define municipal liability. See Chapter III, infra.

4. Francois Daniel Lesage, an African immigrant of Caucasian descent, brought a Section 1983 action for race discrimination following rejection of his application for admission to the Ph. D. program in counseling psychology at the University of Texas. It was undisputed that the University considered race of the applicant in its review process. Finding that the undisputed facts established that Lesage would have been rejected even if the admissions process had been entirely color blind, the District Court entered summary judgment for the University. The Court of Appeals for the Fifth Circuit reversed, finding the determination of whether Lesage would have been admitted to be irrelevant to whether the University had violated his constitutional rights.

   The United States Supreme Court reversed the Court of Appeals:

   [E]ven if the government has considered an impermissible criterion in making a decision adverse to the plaintiff, it can nonetheless defeat liability by demonstrating that it would have made the same decision absent the forbidden consideration [citations omitted]. Our previous decisions on this point have typically involved retaliation for protected First Amendment activity more than racial discrimination, but that distinction is immaterial. The underlying principle is the same . . . Simply put, where a plaintiff challenges a discrete governmental decision as being based on an impermissible criterion and it is undisputed that the government would have made the same decision regardless, there is no cognizable injury warranting relief under §1983.

   Texas v. Lesage, 528 U.S. 18, 20-21 (1999).

5. One court has differentiated the causal connection required to prevail among Section 1983 actions based upon the type of relief requested:

   In analyzing this relationship between deliberate indifference and the constitutional deprivation, we believe it is important to distinguish the causal connection required when a plaintiff seeks injunctive or declaratory relief as opposed to damages. When a prisoner seeks injunctive or declaratory relief against a myriad of prison personnel responsible for operating a prison, we focus on whether the combined acts or omissions of the state officials responsible for operating the state’s penal system created living conditions that violate the eight amendment. See Williams, 689 F.2d at 1383. The approach undeniably focuses on the duties and responsibilities of each of the individual defendants whose acts or omissions are alleged to have caused the constitutional deprivation. Id. at 1381; see Rizzo, 423 U.S. at 370-71, 375-77, 96 S. Ct. at 603-04, 606-07. However, the causal link between the deliberate indifference and the eighth amendment deprivation is broader and more generalized than when that same prisoner seeks damages for the harmful effects of such conditions. See Williams , 689 F.2d at 1383-84 (contrasting the “broad and generalized” approach to causation in a suit seeking injunctive relief with the “individualized” inquiry applicable to suits seeking damages from individual prison officials).

   When plaintiffs, such as inmates, seek to hold an individual defendant personally liable for damages, the causation inquiry between the deliberate indifference and the eighth amendment deprivation must be more refined. We must focus on whether the individual defendant was in a position to take steps to avert the stabbing incident, but failed to do so intentionally or with deliberate indifference. In order to resolve this causation issue, we must take a very individualized approach which accounts for the duties, discretion, and means of each defendant. See Williams, 689 F.2d at 1384. Especially when, as in this case, a prisoner seeks to hold a prison employee individually liable because another prisoner attacked him, the prisoner must establish individual fault.

   Leer v. Murphy, 844 F.2d 628, 633-34 (9th Cir. 1988).

6. Did the Martinez family sue the parole board because of the board’s action or inaction?
   1. Does the Constitution impose any requirement that the government act affirmatively, as opposed to prohibiting governmental conduct? See Monroe v. Pape , supra at 180. (“It is abundantly clear that one reason the legislation [Section 1983] was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced...”) and Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev. 864 (1986). If the Constitution does impose a duty on the government to affirmatively act, are state and local officials liable under Section 1983 whenever they fail to prevent a crime? Do police officers have an obligation to arrest a suspect as soon as they have probable cause? Must parole officers refuse to grant parole whenever there is a foreseeable risk that the prisoner will commit a crime if released from custody?

   2. If the Constitution does not impose any duty of affirmative governmental action, may a police officer refuse to intervene while a fellow officer beats an arrested person in his presence? See Byrd v. Briske,466 F.2d 6 (7th Cir. 1972). May prison authorities decline to protect inmates from assaults by other inmates? Compare Davidson v. Cannon, 474 U.S. 344 (1986) with Withers v. Levine, 615 F.2d 158 (4th Cir.), cert. denied, 449 U.S. 849 (1980). Are prison officials constitutionally obliged to provide medical care to prisoners? See Estelle v. Gamble, 429 U.S. 97 (1976). May an FBI informant choose not to prevent a police officer from executing a murder contract? See Beard v. O'Neal, 728 F.2d 894 (7th Cir.), cert. denied, 469 U.S. 825 (1984).

DeShaney v. Winnebago County Department of Social Services

Chief Justice Rehnquist delivered the opinion of the Court.

Petitioner is a boy who was beaten and permanently injured by his father, with whom he lived. Respondents are social workers and other local officials who received complaints that petitioner was being abused by his father and had reason to believe that this was the case, but nonetheless did not act to remove petitioner from his father's custody. Petitioner sued respondents claiming that their failure to act deprived him of his liberty in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We hold that it did not.

I

The facts of this case are undeniably tragic. Petitioner Joshua DeShaney was born in 1979. In 1980, a Wyoming court granted his parents a divorce and awarded custody of Joshua to his father, Randy DeShaney. The father shortly thereafter moved to Neenah, a city located in Winnebago County, Wisconsin, taking the infant Joshua with him. There he entered into a second marriage, which also ended in divorce.

The Winnebago County authorities first learned that Joshua DeShaney might be a victim of child abuse in January 1982, when his father's second wife complained to the police, at the time of their divorce, that he had previously "hit the boy causing marks and [was] a prime case for child abuse." App. 152-153. The Winnebago County Department of Social Services (DSS) interviewed the father, but he denied the accusations, and DSS did not pursue them further. In January 1983, Joshua was admitted to a local hospital with multiple bruises and abrasions. The examining physician suspected child abuse and notified DSS, which immediately obtained an order from a Wisconsin juvenile court placing Joshua in the temporary custody of the hospital. Three days later, the county convened an ad hoc "Child Protection Team" -- consisting of a pediatrician, a psychologist, a police detective, the county's lawyer, several DSS caseworkers, and various hospital personnel -- to consider Joshua's situation. At this meeting, the Team decided that there was insufficient evidence of child abuse to retain Joshua in the custody of the court. The Team did, however, decide to recommend several measures to protect Joshua, including enrolling him in a preschool program, providing his father with certain counselling services, and encouraging his father's girlfriend to move out of the home. Randy DeShaney entered into a voluntary agreement with DSS in which he promised to cooperate with them in accomplishing these goals.

Based on the recommendation of the Child Protection Team, the juvenile court dismissed the child protection case and returned Joshua to the custody of his father. A month later, emergency room personnel called the DSS caseworker handling Joshua's case to report that he had once again been treated for suspicious injuries. The caseworker concluded that there was no basis for action. For the next six months, the caseworker made monthly visits to the DeShaney home, during which she observed a number of suspicious injuries on Joshua's head; she also noticed that he had not been enrolled in school, and that the girlfriend had not moved out. The caseworker dutifully recorded these incidents in her files, along with her continuing suspicions that someone in the DeShaney household was physically abusing Joshua, but she did nothing more. In November 1983, the emergency room notified DSS that Joshua had been treated once again for injuries that they believed to be caused by child abuse. On the caseworker's next two visits to the DeShaney home, she was told that Joshua was too ill to see her. Still DSS took no action.

In March 1984, Randy DeShaney beat 4-year-old Joshua so severely that he fell into a life-threatening coma. Emergency brain surgery revealed a series of hemorrhages caused by traumatic injuries to the head inflicted over a long period of time. Joshua did not die, but he suffered brain damage so severe that he is expected to spend the rest of his life confined to an institution for the profoundly retarded. Randy DeShaney was subsequently tried and convicted of child abuse.

Joshua 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, DSS, and various individual employees of DSS. 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. The District Court granted summary judgment for respondents.

The Court of Appeals for the Seventh Circuit affirmed, 812 F. 2d 298 (1987), holding that petitioners had not made out an actionable § 1983 claim for two alternative reasons. First, the court held that the Due Process Clause of the Fourteenth Amendment does not require a state or local governmental entity to protect its citizens from "private violence, or other mishaps not attributable to the conduct of its employees." Id., at 301. In so holding, the court specifically rejected the position...that once the State learns that a particular child is in danger of abuse from third parties and actually undertakes to protect him from that danger, a "special relationship" arises between it and the child which imposes an affirmative constitutional duty to provide adequate protection. 812 F. 2d, at 303-304. Second, the court held, in reliance on our decision in Martinez v. California , 444 U.S. 277, 285 (1980), that the causal connection between respondents' conduct and Joshua's injuries was too attenuated to establish a deprivation of constitutional rights actionable under § 1983. 812 F. 2d, at 301-303. The court therefore found it unnecessary to reach the question whether respondents' conduct evinced the "state of mind" necessary to make out a due process claim after Daniels v. Williams, 474 U.S. 327 (1986), and Davidson v. Cannon, 474 U.S. 344 (1986). 812 F. 2d, at 302.

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. Racine, 847 F. 2d 1211, 1220-1223, and n. 10 (CA7 1988)(en banc) (collecting cases), cert. pending, No. 88-576, and the importance of the issue to the administration of state and local governments, we granted certiorari. 485 U.S. 958 (1988). We now affirm.

II

The Due Process Clause of the Fourteenth Amendment provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." Petitioners contend that the State deprived Joshua of his liberty interest in "free[dom] from . . . unjustified intrusions on personal security," see Ingraham v. Wright , 430 U.S. 651, 673 (1977), by failing to provide him with adequate protection against his father's violence. The claim is one invoking the substantive rather than the procedural component of the Due Process Clause; petitioners do not claim that the State denied Joshua protection without according him appropriate procedural safeguards, see Morrissey v. Brewer, 408 U.S. 471, 481 (1972), but that it was categorically obligated to protect him in these circumstances, see Youngberg v. Romeo, 457 U.S. 307, 309 (1982).²

But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. Nor does history support such an expansive reading of the constitutional text. Like its counterpart in the Fifth Amendment, the Due Process Clause of the Fourteenth Amendment was intended to prevent government "from abusing [its] power, or employing it as an instrument of oppression," Davidson v. Cannon, supra, at 348; see also Daniels v. Williams, supra, at 331 (“to secure the individual from the arbitrary exercise of the powers of government,” and "to prevent governmental power from being 'used for purposes of oppression'") (internal citations omitted); Parratt v. Taylor,451 U.S. 527, 549 (1981) (Powell, J., concurring in result) (to prevent the "affirmative abuse of power"). Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes.

Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual. See, e. g., Harris v. McRae, 448 U.S. 297, 317-318 (1980) (no obligation to fund abortions or other medical services) (discussing Due Process Clause of Fifth Amendment);Lindsey v. Normet, 405 U.S. 56, 74 (1972) (no obligation to provide adequate housing)(discussing Due Process Clause of Fourteenth Amendment); see also Youngberg v. Romeo, supra, at 317 ("As a general matter, a State is under no constitutional duty to provide substantive services for those within its border"). As we said inHarris v. McRae: "Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference . . ., it does not confer an entitlement to such [governmental aid] as may be necessary to realize all the advantages of that freedom." 448 U.S., at 317-318 (emphasis added). If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them.³ As a general matter, then, we conclude that a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.

Petitioners contend, however, that even if the Due Process Clause imposes no affirmative obligation on the State to provide the general public with adequate protective services, such a duty may arise out of certain "special relationships" created or assumed by the State with respect to particular individuals. Brief for Petitioners 13-18. Petitioners argue that such a "special relationship" existed here because the State knew that Joshua faced a special danger of abuse at his father's hands, and specifically proclaimed, by word and by deed, its intention to protect him against that danger. Id., at 18-20. Having actually undertaken to protect Joshua from this danger -- which petitioners concede the State played no part in creating -- the State acquired an affirmative "duty," enforceable through the Due Process Clause, to do so in a reasonably competent fashion. Its failure to discharge that duty, so the argument goes, was an abuse of governmental power that so "shocks the conscience," Rochin v. California, 342 U.S. 165, 172 (1952), as to constitute a substantive due process violation. Brief for Petitioners 20.⁴

We reject this argument. It is true that in certain limited circumstances the constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals. InEstelle v. Gamble , 429 U.S. 97 (1976), we recognized that the Eighth Amendment's prohibition against cruel and unusual punishment, made applicable to the States through the Fourteenth Amendment's Due Process Clause, Robinson v. California, 370 U.S. 660 (1962), requires the State to provide adequate medical care to incarcerated prisoners. 429 U.S., at 103-104.⁵ We reasoned that because the prisoner is unable "'by reason of the deprivation of his liberty [to] care for himself,'" it is only "'just'" that the State be required to care for him. Ibid., quoting Spicer v. Williamson, 191 N.C. 487, 490, 132 S. E. 291, 293 (1926).

In Youngberg v. Romeo, 457 U.S. 307 (1982), we extended this analysis beyond the Eighth Amendment setting,⁶ holding that the substantive component of the Fourteenth Amendment's Due Process Clause requires the State to provide involuntarily committed mental patients with such services as are necessary to ensure their "reasonable safety" from themselves and others. Id., at 314-325; see id., at 315, 324 (dicta indicating that the State is also obligated to provide such individuals with "adequate food, shelter, clothing, and medical care"). As we explained: "If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional [under the Due Process Clause] to confine the involuntarily committed -- who may not be punished at all -- in unsafe conditions." Id., at 315-316; see also Revere v. Massachusetts General Hospital , 463 U.S. A name="page2.106">239, 244 (1983) (holding that the Due Process Clause requires the responsible government or governmental agency to provide medical care to suspects in police custody who have been injured while being apprehended by the police).

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 some responsibility for his safety and general well-being. See Youngberg v. Romeo , supra, at 317 ("When a person is institutionalized -- and wholly dependent on the State[,] . . . a duty to provide certain services and care does exist"). The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs -- e. g., food, clothing, shelter, medical care, and reasonable safety -- it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. See Estelle v. Gamble , supra, at 103-104; Youngberg v. Romeo, supra, at 315-316. 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. See Estelle v. Gamble, supra, at 103 ("An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met"). In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf -- through incarceration, institutionalization, or other similar restraint 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 harms inflicted by other means.⁸

The Estelle-Youngberg analysis simply has no applicability in the present case. Petitioners concede that the harms Joshua suffered occurred not 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.⁹ 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 do anything to 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.

It may well be that, by voluntarily undertaking to protect Joshua against a danger it concededly played no part in creating, the State acquired a duty under state tort law to provide him with adequate protection against that danger. See Restatement (Second) of Torts § 323 (1965) (one who undertakes to render services to another may in some circumstances be held liable for doing so in a negligent fashion); see generally W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts § 56 (5th ed. 1984) (discussing "special relationships" which may give rise to affirmative duties to act under the common law of tort). But the claim here is based on the Due Process Clause of the Fourteenth Amendment, which, as we have said many times, does not transform every tort committed by a state actor into a constitutional violation. See Daniels v. Williams , 474 U.S., at 335-336; Parratt v. Taylor , 451 U.S., at 544; Martinex v. California, 444 U.S. 277, 285 (1980); Baker v. McCollan, 443 U.S. 137, 146 (1979); Paul v. Davis, 424 U.S. 693, 701 (1976). A State may, through its courts and legislatures, impose such affirmative duties of care and protection upon its agents as it wishes. But not "all common-law duties owed by government actors were . . . constitutionalized by the Fourteenth Amendment." Daniels v. Williams, Supra, at 335. Because, as explained above, the State had no constitutional duty to protect Joshua against his father's violence, its failure to do so -- though calamitous in hindsight -- simply does not constitute a violation of the Due Process Clause.¹⁰

Judges and lawyers, like other humans, are moved by natural sympathy in a case like this to find a way for Joshua and his mother to receive adequate compensation for the grievous harm inflicted upon them. But before yielding to that impulse, it is well to remember once again that the harm was inflicted not by the State of Wisconsin, but by Joshua's father. The most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them. In defense of them it must also be said that had they moved too soon to take custody of the son away from the father, they would likely have been met with charges of improperly intruding into the parent-child relationship, charges based on the same Due Process Clause that forms the basis for the present charge of failure to provide adequate protection.

The people of Wisconsin may well prefer a system of liability which would place upon the State and its officials the responsibility for failure to act in situations such as the present one. They may create such a system, if they do not have it already, by changing the tort law of the State in accordance with the regular lawmaking process. But they should not have it thrust upon them by this Court's expansion of the Due Process Clause of the Fourteenth Amendment.

Affirmed.

Justice Brennan, with whom Justice Marshall and Justice Blackmun join, dissenting.

"The most that can be said of the state functionaries in this case," the Court today concludes, "is that they stood by and did nothing when suspicious circumstances dictated a more active role for them." Ante this page. Because I believe that this description of respondents' conduct tells only part of the story and that, accordingly, the Constitution itself "dictated a more active role" for respondents in the circumstances presented here, I cannot agree that respondents had no constitutional duty to help Joshua DeShaney.

It may well be, as the Court decides, ante, at 194-197, that the Due Process Clause as construed by our prior cases creates no general right to basic governmental services. That, however, is not the question presented here; indeed, that question was not raised in the complaint, urged on appeal, presented in the petition for certiorari, or addressed in the briefs on the merits. No one, in short, has asked the Court to proclaim that, as a general matter, the Constitution safeguards positive as well as negative liberties.

This is more than a quibble over dicta; it is a point about perspective, having substantive ramifications. In a constitutional setting that distinguishes sharply between action and inaction, one's characterization of the misconduct alleged under § 1983 may effectively decide the case. Thus, by leading off with a discussion (and rejection) of the idea that the Constitution imposes on the States an affirmative duty to take basic care of their citizens, the Court foreshadows -- perhaps even preordains -- its conclusion that no duty existed even on the specific facts before us. This initial discussion establishes the baseline from which the Court assesses the DeShaneys' claim that, when a State has -- "by word and bydeed," ante, at 197 -- announced an intention to protect a certain class of citizens and has before it facts that would trigger that protection under the applicable state law, the Constitution imposes upon the State an affirmative duty of protection.

The Court's baseline is the absence of positive rights in the Constitution and a concomitant suspicion of any claim that seems to depend on such rights. From this perspective, the DeShaneys' claim is first and foremost about inaction (the failure, here, of respondents to take steps to protect Joshua), and only tangentially about action (the establishment of a state program specifically designed to help children like Joshua). And from this perspective, holding these Wisconsin officials liable -- where the only difference between this case and one involving a general claim to protective services is Wisconsin's establishment and operation of a program to protect children -- would seem to punish an effort that we should seek to promote.

I would begin from the opposite direction. I would focus first on the action that wisconsin has taken with respect to Joshua and children like him, rather than on the actions that the State failed to take. Such a method is not new to this Court. Both Estelle v. Gamble, 429 U.S. 97 (1976), and Youngberg v. Romeo, 457 U.S. 307 (1982), began by emphasizing that the States had confined J. W. Gamble to prison and Nicholas Romeo to a psychiatric hospital. This initial action rendered these people helpless to help themselves or to seek help from persons unconnected to the government. See Estelle, supra, at 104 ("[I]t is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself"); Youngberg, supra, at 317 ("When a person is institutionalized -- and wholly dependent on the State -- it is conceded by petitioners that a duty to provide certain services and care does exist"). Cases from the lower courts also recognize that a State's actions can be decisive in assessing the constitutional significance of subsequent 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).

Because of the Court's initial fixation on the general principle that the Constitution does not establish positive rights, it is unable to appreciate our recognition in Estelle and Youngberg that this principle does not hold true in all circumstances. Thus, in the Court's view, Youngberg can be explained (and dismissed) in the following way: "In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf -- through incarceration, institutionalization, or other similar restraint 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 harms inflicted by other means." Ante, at 200. This restatement of Youngberg's holding should come as a surprise when one recalls our explicit observation in that case that Romeo did not challenge his commitment to the hospital, but instead "argue[d] that he ha[d] a constitutionally protected liberty interest in safety, freedom of movement, and training within the institution; and that petitioners infringed these rights by failing to provide constitutionally required conditions of confinement." 457 U.S., at 315 (emphasis added). I do not mean to suggest that "the State's affirmative act of restraining the individual's freedom to act on his own behalf," ante, at 200, was irrelevant in Youngberg; rather, I emphasize that this conduct would have led to no injury, and consequently no cause of action under § 1983, unless the State then had failed to take steps to protect Romeo from himself and from others. In addition, the Court's exclusive attention to state-imposed restraints of "the individual's freedom to act on his own behalf," ante, at 200, suggests that it was the State that rendered Romeo unable to care for himself, whereas in fact -- with an I. Q. of between 8 and 10, and the mental capacity of an 18-month-old child, 457 U.S., at 309 -- he had been quite incapable of taking care of himself long before the State stepped into his life. Thus, the fact of hospitalization was critical in Youngbergnot because it rendered Romeo helpless to help himself, but because it separated him from other sources of aid that, we held, the State was obligated to replace. Unlike the Court, therefore, I am unable to see in Youngberg a neat and decisive divide between action and inaction.

Moreover, to the Court, the only fact that seems to count as an "affirmative act of restraining the individual's freedom to act on his own behalf" is direct physical control. Ante, at 200 (listing only "incarceration, institutionalization, [and] other similar restraint of personal liberty" in describing relevant "affirmative acts"). I would not, however, give Youngberg Youngberg and Estelle such a stingy scope. I would recognize, as the Court apparently cannot, that "the State's knowledge of [an] individual's predicament [and] its expressions of intent to help him" can amount to a "limitation . . . on his freedom to act on his own behalf" or to obtain help from others. Ante, at 200. Thus, I would read Youngberg and Estelle to stand for the much more generous proposition that, if a State cuts off private sources of aid and then refuses aid itself, it cannot wash its hands of the harm that results from its inaction.

Youngberg and Estelle are not alone in sounding this theme. In striking down a filing fee as applied to divorce cases brought by indigents, see Boddie v. Connecticut, 401 U.S. 371 (1971), and in deciding that a local government could not entirely foreclose the opportunity to speak in a public forum, see, e.g., Schnieder v. State, 308 U.S. 147 (1939); Hague v. Committee, 307 U.S. 496 (1939); United States v. Grace, 461 U.S. 171 (1983), we have acknowledged that a State's actions -- such as the monopolization of a particular path of relief -- may impose upon the State certain positive duties. Similarly, Shelley v. Kraemer, 334 U.S. 1 (1948), and Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), suggest that a State may be found complicit in an injury even if it did not create the situation that caused the harm.

Arising as they do from constitutional contexts different from the one involved here, cases like Boddie and Burton are instructive rather than decisive in the case before us. But they set a tone equally well established in precedent as, and contradictory to, the one the Court sets by situating the DeShaneys' complaint within the class of cases epitomized by the Court's decision in Harris v. McRae, 448 U.S. 297 (1980). The cases that I have cited tell us that Goldberg v. Kelly, 397 U.S. 254 (1970) (recognizing entitlement to welfare under state law), can stand side by side with Dandridge v. Williams, 397 U.S. 471, 484 (1970) (implicitly rejecting idea that welfare is a fundamental right), and that Goss v. Lopez, 419 U.S. 565, 573 (1975) (entitlement to public education under state law), is perfectly consistent with San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 29-39 (1973) (no fundamental right to education). To put the point more directly, these cases signal that a State's prior actions may be decisive in analyzing the constitutional significance of its inaction. I thus would locate the DeShaneys' claims within the framework of cases like Youngberg and Estelle, and more generally, Boddie and Schnieder, by considering the actions that Wisconsin took with respect to Joshua.

Wisconsin has established a child-welfare system specifically designed to help children like Joshua. Wisconsin law places upon the local departments of social services such as respondent (DSS or Department) a duty to investigate reported instances of child abuse. See Wis. Stat. § 48.981(3) (1987-1988). While other governmental bodies and private persons are largely responsible for the reporting of possible cases of child abuse, see § 48.981(2), Wisconsin law channels all such reports to the local departments of social services for evaluation and, if necessary, further action. § 48.981(3). Even when it is the sheriff's office or police department that receives a report of suspected child abuse, that report is referred to local social services departments for action, see § 48.981(3)(a); the only exception to this occurs when the reporter fears for the child's immediate safety. § 48.981(3)(b). In this way, Wisconsin law invites -- indeed, directs -- citizens and other governmental entities to depend on local departments of social services such as respondent to protect children from abuse.

The specific facts before us bear out this view of Wisconsin's system of protecting children. Each time someone voiced a suspicion that Joshua was being abused, that information was relayed to the Department for investigation and possible action. When Randy DeShaney's second wife told the police that he had "'hit the boy causing marks and [was] a prime case for child abuse,'" the police referred her complaint to DSS. Ante, at 192. When, on three separate occasions, emergency room personnel noticed suspicious injuries on Joshua's body, they went to DSS with this information. Ante, at 192-193. When neighbors informed the police that they had seen or heard Joshua's father or his father's lover beating or otherwise abusing Joshua, the police brought these reports to the attention of DSS. App. 144-145. And when respondent Kemmeter, through these reports and through her own observations in the course of nearly 20 visits to the DeShaney home, id., at 104, compiled growing evidence that Joshua was being abused, that information stayed within the Department -- chronicled by the social worker in detail that seems almost eerie in light of her failure to act upon it. (As to the extent of the social worker's involvement in, and knowledge of, Joshua's predicament, her reaction to the news of Joshua's last and most devastating injuries is illuminating: "'I just knew the phone would ring some day and Joshua would be dead.'" 812 F. 2d 298, 300 (CA7 1987).)

Even more telling than these examples is the Department's control over the decision whether to take steps to protect a particular child from suspected abuse. While many different people contributed information and advice to this decision, it was up to the people at DSS to make the ultimate decision (subject to the approval of the local government's corporation counsel) whether to disturb the family's current arrangements. App. 41, 58. When Joshua first appeared at a local hospital with injuries signaling physical abuse, for example, it was DSS that made the decision to take him into temporary custody for the purpose of studying his situation -- and it was DSS, acting in conjunction with the corporation counsel, that returned him to his father. Ante, at 192. Unfortunately for Joshua DeShaney, the buck effectively stopped with the Department.

In these circumstances, a private citizen, or even a person working in a government agency other than DSS, would doubtless feel that her job was done as soon as she had reported her suspicions of child abuse to DSS. Through its child-welfare program, in other words, the State of Wisconsin has relieved ordinary citizens and governmental bodies other than the Department of any sense of obligation to do anything more than report their suspicions of child abuse to DSS. If DSS ignores or dismisses these suspicions, no one will step in to fill the gap. Wisconsin's child-protection program thus effectively confined Joshua DeShaney within the walls of Randy DeShaney's violent home until such time as DSS took action to remove him. Conceivably, then, children like Joshua are made worse off by the existence of this program when the persons and entities charged with carrying it out fail to do their jobs.

It simply belies reality, therefore, to contend that the State "stood by and did nothing" with respect to Joshua. Ante, at 203. Through its child-protection program, the State actively intervened in Joshua's life and, by virtue of this intervention, acquired ever more certain knowledge that Joshua was in grave danger. These circumstances, in my view, plant this case solidly within the tradition of cases like Youngberg and Estelle .

It will be meager comfort to Joshua and his mother to know that, if the State had "selectively den[ied] its protective services" to them because they were "disfavored minorities," ante, at 197, n. 3, their § 1983 suit might have stood on sturdier ground. Because of the posture of this case, we do not know why respondents did not take steps to protect Joshua; the Court, however, tells us that their reason is irrelevant so long as their inaction was not the product of invidious discrimination. Presumably, then, if respondents decided not to help Joshua because his name began with a "J," or because he was born in the spring, or because they did not care enough about him even to formulate an intent to discriminate against him based on an arbitrary reason, respondents would not be liable to the DeShaneys because they were not the ones who dealt the blows that destroyed Joshua's life.

I do not suggest that such irrationality was at work in this case; I emphasize only that we do not know whether or not it was. I would allow Joshua and his mother the opportunity to show that respondents' failure to help him arose, not out of the sound exercise of professional judgment that we recognized in Youngbergas sufficient to preclude liability, see 457 U.S., at 322-323, but from the kind of arbitrariness that we have in the past condemned. See, e. g., Daniels v. Williams, 474 U.S. 327, 331 (1986) (purpose of Due Process Clause was "to secure the individual from the arbitrary exercise of the powers of government" (citations omitted)); West Coast Hotel Co. v. Parrish , 300 U.S. 379, 399 (1937) (to sustain state action, the Court need only decide that it is not "arbitrary or capricious"); Euclid v. Ambler Realty Co., 272 U.S. 365, 389 (1926) (state action invalid where it "passes the bounds of reason and assumes the character of a merely arbitrary fiat," quoting Purity Extract & Tonic Co. v. Lynch , 226 U.S. 192, 204 (1912)).

Youngberg's deference to a decisionmaker's professional judgment ensures that once a caseworker has decided, on the basis of her professional training and experience, that one course of protection is preferable for a given child, or even that no special protection is required, she will not be found liable for the harm that follows. (In this way, Youngberg's vision of substantive due process serves a purpose similar to that served by adherence to procedural norms, namely, requiring that a state actor stop and think before she acts in a way that may lead to a loss of liberty.) Moreover, that the Due Process Clause is not violated by merely negligent conduct, see Daniels, supra, and Davidson v. Cannon, 474 U.S. 344 (1986), means that a social worker who simply makes a mistake of judgment under what are admittedly complex and difficult conditions will not find herself liable in damages under § 1983.

As the Court today reminds us, "the Due Process Clause of the Fourteenth Amendment was intended to prevent government 'from abusing [its] power, or employing it as an instrument of oppression.'" Ante, at 196, quoting Davidson, supra, U.S., at 348. My disagreement with the Court arises from its failure to see that inaction can be every bit as abusive of power as action, that oppression can result when a State undertakes a vital duty and then ignores it. Today's opinion construes the Due Process Clause to permit a State to displace private sources of protection and then, at the critical moment, to shrug its shoulders and turn away from the harm that it has promised to try to prevent. Because I cannot agree that our Constitution is indifferent to such indifference, I respectfully dissent.

Justice Blackmun, dissenting.

Today, the Court purports to be the dispassionate oracle of the law, unmoved by "natural sympathy." Ante, at 202. But, in this pretense, the Court itself retreats into a sterile formalism which prevents it from recognizing either the facts of the case before it or the legal norms that should apply to those facts. As Justice Brennan demonstrates, the facts here involve not mere passivity, but active state intervention in the life of Joshua DeShaney -- intervention that triggered a fundamental duty to aid the boy once the State learned of the severe danger to which he was exposed.

The Court fails to recognize this duty because it attempts to draw a sharp and rigid line between action and inaction. But such formalistic reasoning has no place in the interpretation of the broad and stirring Clauses of the Fourteenth Amendment. Indeed, I submit that these Clauses were designed, at least in part, to undo the formalistic legal reasoning that infected antebellum jurisprudence, which the late Professor Robert Cover analyzed so effectively in his significant work entitled Justice Accused (1975).

Like the antebellum judges who denied relief to fugitive slaves, see id., at 119-121, the Court today claims that its decision, however harsh, is compelled by existing legal doctrine. On the contrary, the question presented by this case is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them. Faced with the choice, I would adopt a "sympathetic" reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging. Cf. A. Stone, Law, Psychiatry, and Morality 262 (1984) ("We will make mistakes if we go forward, but doing nothing can be the worst mistake. What is required of us is moral ambition. Until our composite sketch becomes a true portrait of humanity we must live with our uncertainty; we will grope, we will struggle, and our compassion may be our only guide and comfort").

Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, "dutifully recorded these incidents in [their] files." It is a sad commentary upon American life, and constitutional principles -- so full of late of patriotic fervor and proud proclamations about "liberty and justice for all" -- that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve -- but now are denied by this Court -- the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U. S. C. § 1983 is meant to provide.

DeShaney v. Winnebago County Department of Social Services Transcript

Notes on DeShaney v. Winnebago County Department of Social Services

Constitutional Duty

1. Was anyone paid to protect Joshua DeShaney? Who should or can protect a child from an abusive parent? What relief is available to Joshua?

2. [N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security.

   DeShaney, 489 U.S. at 195. The above language is indicative of what many courts have termed the negative liberty concept inherent in the Federal Constitution. As Judge Posner observed in Jackson v. Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983):

   [T]he Constitution is a charter of negative liberties rather than positive liberties. [Citations omitted] The men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them. The Fourteenth Amendment, adopted in 1868 at the height of laissez-faire thinking, sought to protect Americans from oppression by state government, not to secure them basic governmental services.

   Is this a question of semantics? Does the provision of the Fifth Amendment “nor shall private property be taken for public use, without just compensation” impose an affirmative duty to pay just compensation, or does it impose a limitation on the government’s power? Is the Sixth Amendment guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right...to have Assistance of Counsel for his defense” an affirmative right or a negative liberty? Can every constitutional duty be phrased in the positive or negative?

3. Is state law a potential source of an affirmative constitutional duty after DeShaney?
   1. In Collins v. City of Harker Heights , 503 U.S. 115 (1992), the widow of a city employee who was asphyxiated when he entered a manhole to unplug a sewer line alleged that the city had violated the substantive aspect of the Due Process Clause by failing to provide a reasonably safe working environment. The Supreme Court rejected the general proposition that the Due Process Clause triggered any affirmative obligation to provide for the safety of government employees. However, the Court was willing to assume that the Texas Hazard Communication Act, which required every employer to take specified precautions to protect workers from hazardous chemicals, created an entitlement that constituted a liberty interest within the meaning of the Fourteenth Amendment. Id. at 129. The Court then found that plaintiff had failed to prove the requisite arbitrariness to establish a breach of the constitutional duty. See alsoBoard of Regents v. Roth, 408 U.S. 564, 577 (1972) (“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules and understandings that stem from an independent source of state law...”).

   2. Town of Castle Rock, Colorado v. Gonzales, 125 S.Ct. 748 (2005) arose out of the murder of Jessica Gonzales’ three daughters at the hands of their estranged father, who in violation of a permanent restraining order, picked up the daughters when they were playing outside their home. At 7:30 p.m., Ms. Gonzales called the police to notify them that her children were missing. When the officers arrived at the scene, Ms. Gonzales showed them the restraining order and asked that it be enforced and the children returned to her immediately. The officers advised her that there was nothing they could do about the restraining order and suggested she call the Police Department if her children had not returned home by 10:00 p.m.

      At around 8:30 p.m., Ms. Gonzales spoke to her husband by cell phone, at which time he stated he had the three children at an amusement park in Denver. Gonzales again called the police department; the officer refused to put out at all points bulletin and told her to wait until 10:00 p.m. to see if her husband returned the girls. At around 10:10, Gonzales called the police and apprized them that her children were still missing, but was told to wait until midnight. She called again at midnight and told the dispatcher that her children were still missing. Ms. Gonzales then went to her husband’s apartment, found no one there, called the police, and was told to wait for an officer to arrive. When no police officer showed up, Ms. Gonzales went to the police station and submitted an incident report. The officer who took the report made no effort to enforce the restraining order or locate the children, and instead went to dinner.

      Less than three hours later, Ms. Gonzales’ husband arrived at the police station and was killed in a shootout after opening fire on the officers. Inside his truck were the bodies of all three daughters, whom he already had murdered.

      Ms. Gonzales filed a Section 1983 action alleging that pursuant to official policy or custom, the town’s police officers failed to respond to her repeated reports that her husband was violating the terms of the restraining order. The court of appeals ruled that the mother had alleged an actionable procedural due process claim because she had a protected property interest in the enforcement of the restraining order.

      The Supreme Court reversed. While acknowledging that interests in property protected by the Due Process Clause are created by state law, the Court ruled that a benefit conferred by state law does not rise to an enforceable property interest if government officials have discretion whether to grant or deny the benefit. The Court reasoned that neither the Colorado statutory requirement to “use every reasonable means to enforce a restraining order” nor the mandate to “arrest, or, if an arrest would be impractical under the circumstances, seek a warrant for the arrest of a restrained person” when the police officer has probable cause, overrode the traditional discretion afforded police to make enforcement mandatory, especially where the parent violating the restraining order was never in the presence of the officers. Furthermore, any non-discretionary statutory imperative that the police seek a warrant would be at most an entitlement to procedure, which would not confer standing, much less create a cognizable property interest. Finally, even had the Colorado legislature intended to make enforcement of restraining orders mandatory, the Court ruled, such an entitlement did not have any “‘ ascertainable monetary value’” as required to rise to a constitutionally protected property interest.

      The Court concluded:

      In light of today’s decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause neither in its procedural nor in its “substantive” manifestations. This reflects continuing reluctance to treat the Fourteenth Amendment as a “font of tort law,” . . . but it does not mean States are powerless to provide victims with personally enforceable remedies. Although the framers of the Fourteenth Amendment and the Civil Rights Act of 1871 . . . did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people of Colorado are free to craft such a system under state law.

      125 S.Ct. At 2810

   3. In Stoneking v. Bradford Area School District , 882 F.2d 720 (3rd Cir. 1989), the court considered whether liability under Section 1983 could be premised upon the failure to protect a student from a sexually abusive teacher. The plaintiff had argued that Pennsylvania’s mandatory attendance law effectively created a custodial relationship between the state and the student. The Stoneking court reasoned that in light of DeShaney “we can no longer rely on the statutory and common law duties imposed in Pennsylvania on school officials as a basis of a duty to protect students from harm occurring as a result of a third person.” Id. at 723 .

   4. If a violation of a state duty is in turn a constitutional violation under the Fourteenth Amendment, would States be less willing to provide assistance to their citizens? If there is a violation of a state entitlement or duty, is each state’s highest court the more appropriate forum in which to decide such issues?

   5. Even if state law does not give rise to a federal constitutional duty to act, a positive right on occasion may be found in the state constitution. See Tucker v. Toia , 43 N.Y. 2d 1, 371 N.E. 2d 449 (1977)(New York statute denying public benefits to needy persons under the age of 21 violates guarantees of Article XVII, Section 1 of New York Constitution providing "The aid, care and support of the needy are public concerns and shall be provided by the state"); North Carolina Constitution, Article XI, Section 4 ("Beneficient provision for the poor, the unfortunate, and the orphan is one of the first duties of a civilized and a Christian state. Therefore, the General Assembly shall provide for and define the duties of a board of public welfare.").

4. What is the scope of the “special relationship” doctrine after DeShaney? May a “special relationship” giving rise to an affirmative duty to act be found absent state custody? Does it matter if the state played a role in creating the danger?
   1. In K.H. v. Morgan , 914 F.2d 846 (7th Cir. 1990), plaintiff sued the Illinois Department of Children and Family Services as well as officials of the department for damages suffered from a series of allegedly improper foster care placements. In affirming the district court’s rejection of qualified immunity, the court distinguished DeShaney as follows:

      This is not a “positive liberties” case, like DeShaney, where the question was whether the Constitution entitles a child to governmental protection against physical abuse by his parents or by other private persons not acting under the direction of the state. The Supreme Court agreed with this court that there is no such entitlement. Here, in contrast, the state removed a child from the custody of her parents; and having done so, it could no more place her in a position of danger, deliberately and without justification, without thereby violating her rights under the due process clause of the Fourteenth Amendment than it could deliberately and without justification place a criminal defendant in a jail or prison in which his health or safety would be endangered, without violating his rights...In either case the state would be a doer of harm rather than merely an inept rescuer, just as the Roman state was a doer of harm when it threw Christians to the lions...

      The Roman analogy is sound even if one concedes, as one must in the light of DeShaney, that the State of Illinois has no constitutional obligation to protect children from physical or sexual abuse by their parents. The state could have left K.H. to the tender mercies of her parents without thereby violating her rights under the Constitution. But having removed her from their custody the state assumed at least a limited responsibility for her safety.

      Id. at 848-49 . See also Kneipp v. Tedder , 95 F.3d 1199, 1208 (3d Cir. 1996) (state actor liable if "(1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; and (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur.");Ross v. United States 910 F.2d 1422, 1431 (7th Cir. 1990)(county liable for cutting off private sources of rescue without providing a meaningful alternative); Wood v. Ostrander , 879 F.2d 583, 590 (9th Cir. 1989) (“the fact that Ostrander arrested Bell, impounded his car, and apparently stranded Wood in a high crime area at 2:30 a.m. ... triggers a duty of the police to afford her some peace and safety”).

   2. In Butera v. District of Columbia, 235 F. 3d 637, 653-54 (D.C. Cir. 2001), the court of appeals recounted the varying circuit views of the elements necessary to give rise to a duty to intervene under the "state created danger" theory:

      While courts of appeals had adopted the State endangerment concept without prompting Supreme Court review, there was little consistency in courts' explanations of the types of actions that would amount to constitutional liability. The Eight Circuit, for example, acknowledged that "[i]t is not clear, under DeShaney, how large a role the state must play in the creation of danger and in the creation of vulnerability before it assumes a corresponding constitutional duty to protect." The court later stated that, to establish constitutional liability, the plaintiff must demonstrate that he "would not have been in harm's way but for the government's affirmative actions." The Seventh Circuit, in turn, provided a slightly different standard, finding State endangerment where the State "greatly increased the danger to [the plaintiff] while constricting access to self-help." Other circuits, however, adopted mote elaborate tests to determine whether the actions of State officials amounted to state endangerment and therefore triggered constitutional liability. . . .

      While all these tests share the key element of State endangerment by affirmative conduct by State actors, they are inconsistent ion their elaborations of the concept. For example, the circuits have adopted different nexus requirements, and employed different degrees of specificity in defining actionable conduct.

5. If the Constitution imposes no affirmative duty to protect a private individual from the actions of a third party, is there any constitutional duty to protect an individual from other governmental officials?

   In Stoneking v. Bradford Area School District , 882 F.2d 720 (3rd Cir. 1989), the court held that the school district and its officials could be held liable for failure to protect a student from sexual abuse by a teacher.

   The principal distinction between DeShaney’s situation and that of Stoneking is that DeShaney’s injuries resulted at the hands of a private actor, whereas Stoneking’s resulted from the actions of a state employee. The significance of the status of the perpetrator as a private actor rather than as a state official is referred to on numerous occasions in the DeShaney opinion. Not only is the Court’s statement of the holding in terms of the identity of the actor...but the analytic steps taken by the Court to reach that holding continuously take note of the status of the person responsible for the injuries...

   Unlike DeShaney’s father, who was referred to throughout the DeShaney opinion as a private third party, Wright was a school district employee subject to defendant’s immediate control. In fact, many of Wright’s interactions with Stoneking occurred in the course of his performance of his official responsibilities, such as during school-sponsored events and trips, and sometimes on school property.

   Id. , 882 F.2d 720 (3rd Cir. 1989) at 724.

   The same court, however, refused to apply this distinction to the state’s refusal to continue funding levels for services to mentally retarded persons living at home.

   The class attempts to distinguish DeShaney by arguing that in this case it is the Commonwealth, rather than private actors, that is causing the harm. They assert that it is the state’s failure to maintain services to the mentally retarded living at home that results in their harm. This cessation of action by the state, however, in no way differs from the DeShaney situation. Just as in DeShaney, the retraction of state intervention permits the harm, but the harm in each case is actively caused by a source other than the state.

   Philadelphia Police and Fire Assn. v. City of Philadelphia , 874 F.2d 156, 167 (3rd Cir. 1989).

   >

6. Does the government owe any duty to protect its employees from private individuals in government custody? In Benavides v. Herrera, 883 F.2d 385 (5th Cir. 1989), local jailers brought a Section 1983 action against the sheriff and county for injuries suffered at the hands of inmates in the course of an escape attempt. Plaintiff alleged that the sheriff had been warned that a jailbreak was imminent but did nothing in response. The court of appeals, relying on DeShaney, affirmed dismissal of the complaint for failure to state a claim. The court observed the anomaly that the Constitution affords greater protection to prisoners than prison guards. The court reasoned, however, that unlike the prisoners the guards were free to quit the relationship.

   In Cornelius v. Town of Highland Lake , 880 F.2d 348, 356 (11th Cir. 1989), the court acknowledged a duty to protect a town clerk who was abducted by inmates participating in a work program outside the prison:

   These inmates never assumed the status of parolee, releasee, furloughed inmate or unknown assailant as in Martinez...In such cases the remoteness of the defendant’s conduct from the actual harm committed by an individual wholly outside the custody and control of the state is too great to impose liability. However here, although the inmates eventually escaped from the custody of the defendants, at the time of the kidnaping they were still within the defendants’ custody and were in the community only by virtue of the defendants’ action in bringing them there.. [T]his custodial relationship supports a finding that the defendants had the power and authority to direct the inmates’ actions in a way that was absent in Martinez...Such power and authority imposes a responsibility upon the state for its own actions.

7. Would DeShaney have had an actionable Section 1983 claim if the Department of Social Services had declined to intervene because he was African-American? In McKee v. City of Rockwell , 877 F.2d 409 (5th Cir. 1989), plaintiff alleged that she was denied equal protection as the result of the refusal of officers to arrest her husband after a domestic assault. The court, in granting defendant’s motion for summary judgment, opined as follows:

   Because McKee’s complaint sounds in Equal Protection rather than Due Process, it is not directly barred by the holding in DeShaney. DeShaney is nonetheless relevant to our analysis of this case...Footnote three does not permit plaintiffs to circumvent the rule of DeShaney by converting every Due Process Claim into an Equal Protection claim via an allegation that state officers exercised their discretion to act in one incident but not in another.

   ****

   McKee cannot, however, prevail merely by showing that the officers knew facts that would have justified an arrest of Streetman. This is the lesson of DeShaney: that law enforcement officers have authority to act does not imply that they have any constitutional duty to act. McKee can sustain her claim only by showing that the non-arrest was the result of discrimination against a protected class. McKee purports to find such discrimination in an alleged policy of the Rockwell Police Department discouraging arrests in domestic violence cases. McKee contends that this policy discriminates against women.

   ****

   [H]er argument reduces to an attempt to generalize a single incident-the police department’s inaction in her own case-into a general policy or practice. We have indicated in other contexts that a single incident, when unaccompanied by supporting history, will frequently be an inadequate basis for inferring a policy...To permit such an argument in this case would eviscerate the discretion reserved to police officers by DeShaney. Absent any evidence of a discriminatory policy, the only reasonable construction of the officers’ action in this case is that they decided that McKee’s complaint did not warrant any further response than what they gave. As DeShaney makes clear, this judgment is not actionable.

   Id. at 413-16. But see Village of Willowbrook v. Olech, 528 U.S. 562 (2000) ("Our cases have recognized successful equal protection claims brought by a ‘class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.").

   Judge Goldberg dissented from the court’s application of DeShaney to Equal Protection claims:

   DeShaney should play no role in McKee’s case. DeShaney seeks to define a bright line limit to the substantive component of the Due Process Clause. DeShaney specifically does not address claims based upon illegitimate distribution of public services in contravention of the Equal Protection Clause...

   Equal protection values are not tied to the scope or limits of governmental discretion, but are tied, instead, to the government’s obligation not to make illegitimate distinctions among those to whom the government provides services...

   The “democratic political processes” upon which the majority rests its hope that all people receive equal protection of the law is not adequate for the task of protecting people when distinctions are made upon suspect and quasi-suspect classifications...We hold dear equal protection values, in large part, because the legislative process may fall short of the Constitution’s commands. There can be no “discretion” to discriminate invidiously.

   Id. at 417-18. See also Soto v. Flores , 103 F.2d 1056, 1066 (1st. Cir. 1997) (to prevail on Equal Protection claim that police discriminate on the basis of sex of complaining witness in domestic disputes, plaintiff “must show that there is a policy or custom of providing less protection to victims of domestic violence than to victims of other crimes, that gender discrimination is a motivating factor, and that Soto was injured by the practice.”)

8. Assuming an affirmative duty of government to act is found, what is the standard of culpability governing its duty?
   1. As noted earlier, in Collins v. City of Harker , 503 U.S. 115 (1992), the Supreme Court assumed that city sanitation workers had a Fourteenth Amendment liberty interest, founded in state statutes, obliging the city to provide warnings, safety training and protective equipment. The Court held, however, that this constitutional duty was not breached because the city’s failure to provide these protections was not “arbitrary:”

      Our refusal to characterize the city’s alleged omission as arbitrary in a constitutional sense rests on the presumption that the administration of government programs is based on rational decisionmaking process that takes account of competing social, political and economic forces. [citation omitted] Decisions concerning the allocation of resources to individual programs, such as sewer maintenance, and to particular aspects of those programs, such as the training and compensation of employees, involve a host of policy choices that must be made by locally elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country. The Due Process Clause “is not a guarantee against incorrect or ill-advised personnel decisions.” Bishop v. Wood, 426 U.S. at 350. Nor does it guarantee municipal employees a workplace that is free of unreasonable risks of harm.

      Id. at 128-129.

   2. In Yvonne L. v. New Mexico Department of Human Services , 959 F.2d 883 (10th Cir. 1992), the court of appeals held that children who were sexually assaulted after having been placed by the state in a private foster care facility were entitled to recover for violation of their Fourteenth Amendment rights if the department “failed to exercise professional judgment.” The court rejected the position of other circuits that “deliberate indifference” was the appropriate standard of culpability, reasoning that “foster children, like involuntarily committed patients, are ‘entitled to more considerate treatment and conditions’ than criminals.” Id. at 894.

      In Shaw by Strain v. Strackhouse , 920 F.2d 1135 (3rd Cir. 1990), an involuntarily institutionalized resident of a state mental institution alleged that the state failed to protect him against abuse and sexual assaults. The court of appeals held that while the deliberate indifference standard applied to non-professional employees, a professional judgment standard governed professional decisionmakers, those persons “‘competent, whether by education, training or experience, to make the particular decision at issue.’” Id. at 1147. The court repudiated the professional defendants’ contention that the professional judgment standard was the functional equivalent of the negligence standard which the Supreme Court, in Daniels v. Williams, 474 U.S. 327 (1986), had held insufficient to constitute a deprivation within the meaning of the Fourteenth Amendment:

      [D]efendants’ attempt to equate professional judgment and negligence falls short of the mark. Professional judgment is a relatively deferential standard. It requires only that a state actor exercise professional judgment in choosing the appropriate course of action. Negligence, however, imposes on a state official the burden of choosing, from among alternatives, a course of action consistent with the exercise of “due care.” That means, as we see it, rejecting negligent alternatives that might nonetheless satisfy the demands of professional judgment.

      Admittedly, the two standards are premised on different criteria. Thus, any attempt to place the two on a single continuum risks becoming, in the vernacular, a comparison of “apples and oranges.” This dissimilarity notwithstanding, professional judgment appears to us to be a substantially less onerous standard than negligence from the viewpoint of the public actor. Indeed, in our view, professional judgment more closely approximates--although...remains somewhat less deferential than--a recklessness standard. Professional judgment, like recklessness and gross negligence, generally falls somewhere between simple negligence and intentional misconduct.

   Id. at 1146.

9. [T]he danger creation theory must ultimately rest on the specifics of a substantive due process claim–i.e., a claim predicated on reckless or intentionally injury-causing state action which "shocks the conscience."
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   In order to discern whether the facts of the instant case "shock the conscience" so as to rise to the level of a substantive due process violation, we must bear in mind three basic principles highlighted by the Supreme Court in evaluating substantive due process claims: (1) the need for restraint in defining their scope; (2) the concern that §1983 not replace state tort law; and (3) the need for deference to local policymaking bodies in making decisions impacting upon public safety.

   * * * * *

   [T]o satisfy the "shocks the conscience" standard, a plaintiff must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power. That is, the plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.

   Uhlrig v. Harder , 64 F. 3d 567, 572-74 (10th Cir. 1995). But see Butera v. District of Columbia , 235 F. 3d 637, 651-52 (D.C. Cir. 2001)(where state has taken individual into custody, shocks the conscience standard may be satisfied by deliberate indifference).