DeShaney v. Winnebago County Dept. of Social Services
489 U.S. 189 (1989)
Randy got custody of his son
Joshua in a divorce proceeding.
After allegations of child
abuse and a hospital visit, the Dept. of Social Services (DSS) started
visiting Randy to check on Joshua.
Despite the fact that the
DSS social worker repeatedly found evidence of continuing abuse, no
action was taking to remove Joshua from Randy's custody.
Randy beat Joshua so badly
that he caused massive, permanent brain damage. Randy was arrested and
convicted of child abuse.
Joshua's mother sued DSS,
claiming that Joshua's constitutional right to liberty had been denied
without due process by DSS's
failure to intervene and protect him from violence. That's would be an
unconstitutional violation of the 14th Amendment.
The Trial Court found for DSS.
The Appellate Court affirmed.
The US Supreme Court affirmed.
The US Supreme Court found
that the government does not have an obligation under the Due Process
Clause to prevent child abuse when
the child is
In parental, not agency
The State did not create
the danger of abuse or increase the child's vulnerability to abuse.
The Court found that failure
to prevent child abuse by a custodial parent does not violate the child's
right to liberty for the purposes of the 14th Amendment.
Basically, this is similar
to the tort law concept of nonfeasance. The State is not constitutionally obligated to protect people
from harms that the State did not generate.
The Court noted that DSS
may have established a duty to care
by deciding to visit Joshua, but that was a tort law issue, not a
"The Due Process
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; while it forbids the State itself to deprive
individuals of life, liberty, and property without due process of law,
its language cannot fairly be read to impose an affirmative obligation
on the State to ensure that those interests do not come to harm through
In a dissent it was argued
that a private citizen or government worker who noticed abuse, would
consider their job done once they reported the situation to DSS. DSS's
inaction ensured that kids like Joshua would not receive any help, and
therefore was an unconstitutional infringement on their liberty interests.