Christine Sandage v. Board of Commissioners of Vand ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1540
C HRISTINE S ANDAGE, et al.,
Plaintiffs-Appellants,
v.
B OARD OF C OMMISSIONERS OF
V ANDERBURGH C OUNTY, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. 3:07-CV-00049 SEB-WGH—Sarah Evans Barker, Judge.
A RGUED O CTOBER 24, 2008—D ECIDED N OVEMBER 24, 2008
Before E ASTERBROOK, Chief Judge, and P OSNER and
R OVNER, Circuit Judges.
P OSNER, Circuit Judge. The plaintiffs’ decedents,
Sheena Sandage-Shofner and Alfonzo Small, along with
a third person, were murdered in Sandage-Shofner’s
apartment by a man named Moore, who then killed
himself. Moore had been serving a four-year sentence, in
the custody of the county sheriff, for robbery. But he was
2 No. 08-1540
on work release, employed cleaning parking lots. It was
while he was on work release that he committed the
murders. Twice—once one month before the murders, the
other time two days before—Sandage-Shofner had called
the sheriff’s department to complain that Moore was
harassing her. (The nature of the harassment, and of
Moore’s relationship to the victims, are unclear.) The
plaintiffs, in this suit under 42 U.S.C. § 1983 against
county officials, claim that the department’s failure
to act on the complaint of harassment by revoking
Moore’s work-release privilege and reimprisoning him
deprived their decedents of their lives without due
process of law, in violation of the Fourteenth Amend-
ment. The district judge dismissed the complaint for
failure to state a claim. Fed. R. Civ. P. 12(b)(6).
We assume, given the procedural posture, that the
defendants were reckless in failing to act on the complaint
of harassment. (If they were merely negligent, the plaintiffs
would have no case.) The judge was nevertheless right
to dismiss the suit. There is no federal constitutional
right to be protected by the government against private
violence in which the government is not complicit. So the
Supreme Court held in DeShaney v. Winnebago County
Dept. of Social Services, 489 U.S. 189 (1989), affirming a
decision by this court, in which the principle was already
well established. In Bowers v. DeVito, 686 F.2d 616, 618 (7th
Cir. 1982), for example, we had said that while “there is
a constitutional right not to be murdered by a state
officer, for the state violates the Fourteenth Amendment
when its officer, acting under color of state law, deprives
a person of life without due process of law, . . . there is
No. 08-1540 3
no constitutional right to be protected by the state
against being murdered by criminals or madmen . . . . The
Constitution is a charter of negative liberties; it tells the
state to let people alone; it does not require the federal
government or the state to provide services, even so
elementary a service as maintaining law and order.” See
also Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir. 1983).
There is a moral right to such services—protection
against violence is the single most important function
of government—and a government that fails in this
duty invites well-deserved political retribution. But there
is no enforceable federal constitutional right.
Such a right would be impractical. The federal courts
would have to decide how much money each state and
every local community would be required to allocate to
protection of life, limb, and property. They would have
to decide how much money must be appropriated for
police and prosecutors and prisons, how police resources
should be deployed across neighborhoods, the minimum
length of state prison sentences, when if ever probation
or parole should be substituted for imprisonment or a
prison sentence suspended, and which state prisoners
should be allowed to serve part or all of their sentences
in halfway houses, at home, or on work release. The federal
courts would fix the speed limits on state highways,
prescribe the lighting on state streets, regulate fire depart-
ments, public hospitals, and paramedic services.
In Jackson v. City of Joliet, supra, the car driven by one
of the plaintiff’s decedents (the other was a passenger)
crashed and burst into flames. A policeman arrived
4 No. 08-1540
quickly but failed to notice that the car was occupied, and
so the occupants died. We held that the policeman’s
failure to save them, even if reckless, was not action-
able under the Constitution because he had not placed
them in danger but had merely failed to rescue
them. And in Tuffendsam v. Dearborn County Board of
Health, 385 F.3d 1124, 1126-27 (7th Cir. 2004), where the
claim was that the county had failed to enforce a law
against discharging sewage into groundwater, and as a
result the value of the plaintiff’s property had declined, we
said that “the root objection to cases of this kind, as
noted by the district judge, is simply the infeasibility of
judicial review of law enforcement. To evaluate the
gravity, the unreasonableness, the gratuitousness of the
county health board’s failure to cause a previous owner
of the plaintiff’s house to abate the discharge of sewage,
or of the board’s failure to induce through prompt and
vigorous legal action the neighbors to contribute to the
expense of building a sewer line, would place the federal
courts in control of sanitation in Dearborn County,
Indiana, responsible for telling the County’s public
health officers how to allocate their limited time and
money among the various public health problems clamor-
ing for their attention. Judge Hamilton [the district
judge] would be the Dearborn County health board.”
No one has a federal constitutional right to have
another person jailed (or, in DeShaney itself, to be pro-
tected against an abusive parent). Town of Castle Rock v.
Gonzales, 545 U.S. 748, 768 (2005) (“the benefit that a third
party may receive from having someone else arrested for
a crime generally does not trigger protections under the
No. 08-1540 5
Due Process Clause”); Leeke v. Timmerman, 454 U.S. 83
(1981); Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).
In Castle Rock, a case much like this one, the police refused
to enforce a domestic-abuse restraining order, despite
repeated demands by the woman against whose husband
the order was directed, and he murdered the couple’s
three children; yet the Supreme Court held that the
refusal was not a denial of due process. The technical
question was whether the State of Colorado had created
a property right in the enforcement of restraining orders,
and the Court found that it had not. Without such a
right—not even claimed in this case—there could be no
possible violation of the due process clause. Our plain-
tiffs make the similar claim that the county was constitu-
tionally required to revoke Moore’s work release and
return him to custody. A dangerous person, the plaintiffs
argue, must not be left at large. The case would be the
same (and identical to Castle Rock) if Moore had not been
serving a sentence but had threatened Sandage-Shofner
and she had complained to the sheriff’s department, the
department had referred the matter to the county pros-
ecutor, and he had decided in a misguided exercise of
his prosecutorial discretion not to order Moore arrested
and charged. It would be the same case if Sandage-Shofner
had been Moore’s child and the county welfare
authorities had allowed her to remain in his custody
though they suspected him of abusing her—that would
be DeShaney, and the actual case before us is indis-
tiguishable from it.
It is true that while there’s no federal constitutional duty
to protect or (as in Jackson) to rescue from a peril that the
6 No. 08-1540
government did not create, there is a duty not to harm
illustrated by White v. Rochford, 592 F.2d 381 (7th Cir. 1979).
Police arrested a driver but left his child passengers
stranded in the driverless car, thus placing them in peril
for the consequences of which the police were held
liable under section 1983. The myriad cases that hold
jailers liable for injuries resulting from deliberate indif-
ference to the medical needs of their prisoners or from
assaults by other inmates are similar. All are cases in
which, before the police or other public authorities act, the
plaintiff is safe. “[T]he Constitution does not require
the government to protect citizens from privately created
danger. It may, however, demand protection if the state
disables people from protecting themselves; having
rendered someone helpless, the state must supply the
sort of defenses that the person could have provided on
his own. So, for example, if the state imprisons someone
and prevents him from obtaining medical care from
private physicians and hospitals, then the state must
supply medical care for serious problems. If the state
takes a child from his parents and places him
involuntarily with a foster family, it must take precautions
to reduce the chance that the foster parents will abuse
the child . . . . If the state forbids private rescue of a drown-
ing man, then the state must furnish a competent
rescue service of its own.” Witkowski v. Milwaukee County,
480 F.3d 511, 513 (7th Cir. 2007) (citations omitted).
Some cases distinguish between the state’s duty not to
inflict harm and its duty to protect someone whom it has
rendered defenseless, and describe the second as a case
in which there is a “special relationship” between the
No. 08-1540 7
state and the person whom it failed to protect that created
a federal constitutional duty. E.g., King v. St. Louis School
Dist. 189, 496 F.3d 812, 817 (7th Cir. 2007); Shanks v. Dressel,
540 F.3d 1082, 1088 n. 5 (9th Cir. 2008). But functionally
the two classes of case are the same, and in Archie v. City
of Racine, 847 F.2d 1211, 1223 (7th Cir. 1988) (en banc),
we disapproved the use of the term “special relationship,”
which we called a “magic phrase” (and we do not
believe in magic). For in both classes of case the victim is
safe before the state intervenes and unsafe afterward. This
is true even in the hypothetical case that we mentioned
in K.H. through Murphy v. Morgan, 914 F.2d 846, 849 (7th
Cir. 1990): “If the fire department rescues you from a fire
that would have killed you, this does not give the depart-
ment a constitutional license to kill you, on the ground that
you will be no worse off than if there were no fire depart-
ment.” Were there no public fire departments, there
would be private ones. “Having put the citizen on the
defensive, or having stripped away avenues of self-help,
the state must afford a procedure reasonably likely to
reach an accurate conclusion even if that means the
implication of positive rights from negative ones. When
the government does not monopolize the avenues of relief,
or when it has already afforded process sufficient to
yield accurate decisions, it has no further obligation to
give aid.” Archie v. City of Racine, supra, 847 F.2d at 1222.
Our plaintiffs’ decedents were not safe before the defen-
dants failed to revoke Moore’s work release. They were
in danger—from Moore—and the defendants had done
nothing to restrict the victims’ “avenues of self-help.”
The plaintiffs’ best case is Monfils v. Taylor, 165 F.3d 511
(7th Cir. 1998). Monfils had tipped off the police to a thief
8 No. 08-1540
at his workplace in a phone call that the police recorded.
He repeatedly begged the police not to release the tape
to anyone because the thief was a violent person who
would recognize his voice. He was assured it would not
be released. The thief, however, requested a copy of the
tape from the police, and a policeman who did not
know about Monfils’s fears gave it to him. So the thief
discovered that Monfils was the informant—and killed
him. We upheld a jury verdict for the plaintiff because
Monfils was safe (or at least much safer) before the
police released the tape, without which the thief would
have been unlikely to identify the informant. By the act
of releasing the tape the police created the mortal danger
to Monfils. In this case, in contrast, the danger was
created by Moore, and by Moore alone; the defendants
merely failed to take any steps to reduce the danger. They
failed in their moral duty to protect members of the
public from private violence, while the police in Monfils
took a step—releasing the tape—that either created or
greatly increased a danger of private violence.
Seeking to blur the distinction, the plaintiffs argue,
though only in their reply brief and there only in passing,
that “it is certainly a plausible explanation for these tragic
events that Moore was angry at Sheena Sandage-Shofner
for calling the Sheriff’s Department and warning them
that Moore was violating his work release.” But they do
not allege that (like Monfils) their decedents requested
anonymity or even that the sheriff’s department told
Moore that it was Sandage-Shofner who had called. Nor
did Sandage-Shofner warn the sheriff’s department that
Moore might become violent if he knew that she had
complained.
No. 08-1540 9
Monfils, moreover, may well have been superseded by
Castle Rock. Although the Supreme Court as we said
rejected the argument that Colorado had created a right
to the enforcement of restraining orders, the Colorado
statute that was claimed to create the right did say that
“a peace officer shall use every reasonable means to
enforce a valid restraining order,” 545 U.S. at 759, and it
is hard to see what difference there is between a statute
that commands enforcement and the promise not to
endanger Monfils by revealing that he was the informant.
In both cases there is a commitment to protect, and if the
statutory commitment is not enforceable under the Four-
teenth Amendment, it is difficult to see why a promise
should be.
The plaintiffs also rely on our recent decision in King v.
St. Louis School Dist. 189, supra, not for its facts, which
bear no relation to those of this case, but for the
principles that the court distilled from the case law to
determine whether the plaintiff can complain under the
Fourteenth Amendment of a failure to protect: first, “the
state, by its affirmative acts, must create or increase a
danger faced by an individual. Second, the failure on the
part of the state to protect an individual from such a
danger must be the proximate cause of the injury to the
individual. Third, . . . the state’s failure to protect the
individual must shock the conscience.” 496 F.3d at 818
(citations omitted). The second principle, while certainly
sound, is a general requirement for relief in a tort suit
rather than anything special to the DeShaney line of cases.
The third principle, as the opinion goes on to explain, is
a reminder that liability for a constitutional tort requires
10 No. 08-1540
proof that the defendant acted (or failed to act) not
merely negligently but recklessly (equivalently, with
“deliberate indifference” to the risk of harm that he
was creating). Id. at 818-20.
The first principle is thus the key one, and its require-
ment of “affirmative acts” distinguishes our case from
Monfils. We add only that “create or increase” must not
be interpreted so broadly as to erase the essential dis-
tinction between endangering and failing to protect. If
all that were required was a causal relation between
inaction and harm, the rule of DeShaney would be undone,
Lockhart-Bembery v. Sauro, 498 F.3d 69, 77 (1st Cir. 2007),
since, had it not been for the state’s inaction in DeShaney,
there would have been no injury. The three cases that
the opinion in King cites for the proposition that the state
must by its “affirmative acts . . . create or increase” the
danger to the victim—Windle v. City of Marion, 321 F.3d
658 (7th Cir. 2003); Bright v. Westmoreland County, 443
F.3d 276 (3d Cir. 2006), and Monfils—are either cases, like
this one, of inaction by law enforcement personnel (Windle
and Bright), so that there was no liability, or a case (Monfils)
in which law enforcement personnel were responsible
for the danger. When courts speak of the state’s “increas-
ing” the danger of private violence, they mean the state
did something that turned a potential danger into an
actual one, rather than that it just stood by and did
nothing to prevent private violence. That was Monfils; it is
not this case; and after Castle Rock a broken promise—the
essential act of which both the plaintiff in that case and
the present plaintiffs complain (though there was more
No. 08-1540 11
in Monfils—the handing over of the tape to the mur-
derer)—may very well not be enough.
A FFIRMED.
11-24-08