Crime & Federalism

Scalia's "Federalism"

As with his "originalism," Justice Scalia selectively incorporates federalism into his opinions.  Snuck into Castle Rock v. Gonzales was this gem:

[Castle Rock's] result reflects our 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 andthe Civil Rights Act of 1871, 17 Stat. 13 (the original source of §1983), 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.

Slip op. at 19.  Cute.  Very cute.  The Fourteenth Amendment should not be a "font" of tort law, since tort law is better left to the states.  After all, every cause of action allowed under the Fourteenth Amendment applies to all 50 states.  Scalia, it seems, interprets the Constitution with federalism in mind.  Or does he?

Why did he not write the same thing of the Commerce Clause in Raich?  There, he could just have easily have written: "This result reflects our continuing reluctance to treat the Commerce Clause as a general police power."

What an unprincipled jerk.

The Government Can Lie

Like Norm, I knew that Castle Rock's outcome was preordained, and yet I'm still disappointed.  In Castle Rock, the government told a mother that it would protect her and her children.  And then lied.

Castle Rock did not involve a slow reaction to a 9-11 phone call.  It involved an affirmative - and dangerous - lie.

When a person files a retraining order against an abusive lover, anger elevates: seeking a restraining order often puts one in more danger than before.  Yet government attorneys will encourage domestic violence victims to seek one.  "We'll protect you," they say. 

After Casle Rock, the government, unlike you or me, can promise to protect someone - and then wilfully break that promise.  The government can assume a duty, and breach that duty without consequence.  A recent pre-Castle Rock decision illustrates why one should never depend on the government.

In Rivera v. Rhode Island (CA1), 15-year old Jennifer Rivera witnessed a gangland murder.  She was too afraid to testify, though, because everyone knew that crossing the gang would mean the death penalty.  But the police promised that they would protect her.

When they broke that promise, little Miss Jennifer died.  Of course, the government faced no consequences.

One reason for not holding them liable is that the police must discretion to enforce the law as they please.  That's reasonable.  But that discretion should be bound when they make promises.

In Castle Rock, the Court could have sent a powerful message to state actors: Don't make promises you don't intend to keep.  It's something most of us learned in as children, but it's something those drunk from power and dizzy from a life of unaccountability no longer remember.

Instead, the Court looked at the potential problems of such a rule.  It let its need to protect government officials from suit overcome the need to hold the government liable. 

The thumb is often on the scales in favor of the government in civil rights cases.  After Castle Rock, there seems to be a fist - an iron fist.

UPDATE: Mackenzie has a post on Castle Rock not to be missed.

Castle Rock's Disappointing Message

It has long been the case that police officers could not be sued for their failure to protect a person. But it took the Castle Rock decision to extend that doctrine one step further: Officers don't even have a duty when a court imposes one.

The plaintiff sought protection from the courts from an abusive spouse. She obtained a protective order requiring that her husband be arrested if he violated the order. The court granted the order.

Well, the husband violated it. He took the couple's three children. The plaintff called the police, who did next to nothing. The children are now dead, at the hands of the man a court had restrained.

The majority of the court held this was not a property interest giving rise to a claim under the Fourteenth Amendment. The more obvious constitutional route, that the police failure shocked the conscience, was foreclosed by the holding of DeShaney in 1989 barring substantive due process claims in failure to protect cases.

It would not have mattered had the plaintiff plead her case as a liberty interest, I suspect. The analysis would have been largely the same. The deeper policy impulses compelling the conclusion reached favored the "well-established tradition of police discretion," according to Justice Scalia.

The court reasoned that state remedies may well exist. In Connecticut, there is an exception to municpal immunity in cases in which an identifiable victim is in immanent risk of harm. It is a difficult needle to thread.

Given DeShaney, Castle Rock was a foregone conclusion. But it needn't have turned out this way. There was an easy distinction that could have been drawn: The court order in Castle Rock transformed this case from one about mere private expectations to one involving whether the state can be held accountable for breaking its commitment to protect a person who had sought the shelter of the court.

By abandoning the plaintiff in Castle Rock, police officers showed something less than respect for the authority of the court and for the rule of law. The Supreme Court's ruling sends a message to vulnerable people: Trust not the courts. It leaves one wondering whether the hidden message to plaintiffs in cases such as these is that self-help and a hand gun are your only real hope for relief.

Castle Rock v. Gonzales

I agree with ExPost (which, by the way, is the best law student group blog) that the Court will likely hand down Castle Rock v. Gonzales on Monday.  To get a head start, you can check out my posts (and readers' comments), which are catalogued in the aply-named category: Castle Rock v. Gonzales.

The Governments Would Quit

DeShaney (and in a few months, Castle Rock) stands for the proposition that the government does not owe citizens any affirmative duties.  That is, the government is not required to protect us from private violence, even when the government promises to help.  One justification for this is, as Sandefur notes:

Rehnquist is absolutely right when he says that allowing tort recovery in DeShaney would create a perverse incentive for government child protective agencies to simply shut down completely, so as to avoid suit. What is your answer for this? You've provided none, and it's a serious objection.

Two points.  First, holding a municipality liable is difficult.  Under Monell, a local government is only liable if it has a policy or custom that is the moving force behind a rights violation.  Showing that the city has a policy or custom of a failing to train its employees is one way to hold a city liable. 

But a policy or custom can not usually be shown with evidence that one social worker was a bad actor.  There generally has to be evidence of a pattern or practice of bad acts.  So, to even hold a city liable, the city has to know that social workers are regularly violating people's rights, and the city ignored or ratified the misconduct.

Moreover, even if a city indemnifies social workers, it's hard to make the city pay.  There's a split in the circuits, but this split benefits social workers either way -- Social workers have either qualified or absolute immunity for suit.  So if the social worker walks because of the immunity doctrines, the city will not be held liable.

So my first argument is a question: Do we want governmental entities that ignore its employees' bad acts serving us?  After all, we can only hold cities liable after showing they had a policy or custom of ignoring unconstitutional acts.  I think the answer is, "No," because those "social workers" tend to harm more than help.  Read this article for a good example of the harm social workers cause.

Second, just as there is the crowding out effect when governments borrow money from private banks (re: then private entrepreneurs can't borrow the money), so too is there a crowding out effect when the government monopolizies social services.  A story from my life illustrates this.

When I was 16, my family had a neighbor who regularly abused his two dogs.  Abusing the weak around me is a stupid because I have pretty solid wits, and a pretty solid physical frame.   Because this neighbor was a pseduo-relative, I resisted my visceral impulses.  Instead, I called the police.  They, however, did nothing.  And they would not do anything.

Realizing that the government would not help, I told my aunt (the cousin of this miscreant) to relay the following message: "If you touch those dogs again, Michael said he will beat you to within one inch of your life."  Sure enough, the abuse stopped.  But I took action only after the government would not act. 

But these days we expect the government to take care of every problem -- Those of us who might take actions to stop child abuse, don't.  "The government will do something," we say to ourselves.  Indeed, if I took action to stop a child abuser, chances are I would be called a vigilante and punished by the state.  Thus, there is a perverse disincentive for private parities to be our "brother's keeper."

So my answer to Rehnquist's argument is this: Holding local governments liable under the current "neglience-plus" standard would have two valuable results.  First, it would encourage localities that don't care about constitutional rights to shut down.  Second, with the corrupt government agencies no longer monopolizing social justice, private citizens would turn to social and other sanctions to prevent child abuse.

American Lawyer Story on Castle Rock

Today I found an excellent article on Castle Rock.  I say that not because because a conflict-of-interest caused me to shill for The American Lawyer, but because Sheldon Nahmod is quoted frequently.  Nahmod is the expect on section 1983.  Read the article.

Castle Rock v. Gonzales III: Protection for Me but None for Thee

The docket for Castle Rock indicates what organizations and parties have filed amicus briefs.  Conspiciously absent from this page are people who are supposed to care about children - social workers.

As I demonstrated in this post, DeShaney - the precedent Castle Rock builds its case upon - harms children.  Social workers about supposed to care about children.  Indeed, Castle Rock involves the murder of three children.  Thus, I expected to see an amicus brief filed by social services workers, encouraging the Court to distinguish DeShaney.

To my surprise, they have not filed one.  Why not?  Because that could mean that social workers would be liable for returning children to a dangerous home.  Social workers who knowingly place children in an abuse home currently face no liability. 

But shouldn't the good social workers want the bad social workers to face liabilty?  I want to see corrupt lawyers to face lawsuits and disbarment proceedings.  Shouldn't social workers want their ignoble peers to face harsh punishment?

Judging from the sound of silence, I guess not.

That's something to consider the next time some special-interest group for social workers bandies about, telling everyone how much they love children.  If social workers really cared about children, wouldn't they want to provide a remedy for those who are abused? 

Or does loyalty to crooked and incompetent social workers trump the safety of children?

Castle Rock v. Gonzales Part II: DeShaney Hurts Children

DeShaney is a God-forsaken (I mean that literally) decision that has caused thousands of children to be molested and abused.  These children were unnecessary victims.  Here are two cases from CA8 illustrating my point -- These cases properly applied DeShaney, which shows what an awful principle it articulates.

In S.S. v. McMullen, 225 F.3d 960 (8th Cir. 2000) (en banc), a social worker removed a child from an abusive home.  The father was abusive, and he frequently had a convicted pedophile in his home.  Ultimately, S.S. was beaten and used.  But the court had to deny her relief.

Citing DeShaney, the court denied S.S’s claim against social workers who returned S.S. to her sick and twisted father and his perverted friends.  The state did not increase or create the danger.  Rather, they "merely" returned S.S. to the lion's den.  “[I]f the state acts affirmatively to place someone in a position of danger that he or she would not otherwise have faced, the state actor, depending on his or her state of mind, may have committed a constitutional tort.”  Id. at 962. Thus, “[w]hile recognizing the correctness of that principle as a general matter is indisputable, [ ] it cannot give rise to liability in the present case” because the state did not create the danger.  Rather, the social workers simply returned S.S. to an already dangerous environment.  Thus, no danger creation and no liablity under DeShaney.

In Terry B. v. Gilkey, 229 F.3d 680 (8th Cir. 2000), the court did not find a rights violation when a social worker placed children with an aunt and uncle who subsequently abused the children because “DHS ‘did not increase the danger of significant harm’ [but] merely placed the children back” into a dangerous situation.  (citing S.S., above).  Under DeShaney, social workers need not place the children in a safe home.  Let's call it the Ostrich rule.

State and local officials have hidden behind DeShaney long enough.  They know that they need not do their jobs and protect children because if they fail, they face no consequences.  Thus, although I would be joyful if the Court used Castle Rock as a chance to curtail DeShaney, I know it won't happen.

Basically, a vote for DeShaney is a vote for child molestors and a vote against personal responsibility.  Shouldn't incompetent social workers who cause children to be abused be held to answer?  But I suppose that members of the Court will hide behind abstract principles and the voo-doo-like magesty of state discretion will prevail.

Castle Rock v. Gonzales

On Monday the Court will hear oral arguments in Town of Castle Rock v. Gonzales.  It's a hearbreaking case.

Ms. Gonzales obtained a restraining order against her mentally and physically abusive husband.  Her husband violated the restraining order and went to her home while she was at work.  Mr. Gonzales kidnapped her children.

Over the course of several hours, Ms. Gonzales called the police.  They blew her off.  Later that night - and several hours after Ms. Gonzales begged the police to help -- Mr. Gonzales murdered his three children.  Ms. Gonzales sued the police and city of Castle Rock under section 1983.  An en banc panel of the Tenth Circuit Court of Appeals allowed her claim to go foward.  City of Casle Rock v. Gonzales (CA10).

But what about DeShaney?  In DeShaney, the Court held that private citizens did not have a substantive due process right to protection from private violence (there are two exceptions, but they do not apply here).  In DeShaney a social worker removed a child from an abusive home and then returned the child to the home, where he suffered more abuse and ultimately was brain-damaged.  DeShaney is a miserable case that disregards clear principles of tort law.

The Court often says that section 1983 is to be read against the background of general principles of tort liability.  Under general principles of tort there is no duty to act.  But once you remove someone from a dangerous position, you may not return them to that dangerous position.  To paraphrase Judge Posner -- You can't rescue someone from a lion's den, return him to the lions, and then pretend it's not you fault when the lions eat him.  But Rehnquist, always more concerned with state autonomy than child welfare, led a 5-4 Court in disregarding this clear principle.

But DeShaney is the law.  To get around DeShaney, the plaintiff's lawyers argued that it was a procedural due process case.

They argued that Ms. Gonzales had a property interest in the restraining order, and that in not enforcing the order, the police deprived her of her procedural due process rights.  If a person has a property interest in welfare payments, then the state must pay those benefits.  Thus, is a person has a property interest in a restraining order, then the government must act according to the restraining order's terms.  Ms. Gonzales' restraing order said that police should take all reasonable measures necessary to enforce the order.

Since the Court will look to state law to determine whether the plaintiff has a property interest, the plaintiffs have to establish that the state intended to create a property interest in a restraining order.  The restraining order is unlike tenure or entitlement benefits, which we can think of as "vesting."  A restraining order acts like an injunction.  If a person violates a restraining order, just as if a person violates an injunction, he or she can be arrested.  But there is no precedent that an injunction is is property.  Even if there is a property interest in a restraining order, Gonzales faces problems.

To side with Gonzales the Court would have to hold that the government owes an affirmative duty to protect a parties' property interest.  There isn't any precedent for this.  Although the state can not arbitrarily deprive one of his welfare benefits, they are not required to ensure that I don't steal someone's welfare check from her mailbox.  That is a distinction that will control Gonzales.  Indeed, the Question Presented sets the tone disfavorably towards Gonzales.

Gonzales is a sad case, but it's a sure loser.  Although I disagree with the rationale of DeShaney, there is no escaping that it applies here.

It's also worth nothing that the police aren't as heartless and they might appear in Gonzales.  Every criminal lawyer reading this has had a case where a wife gets a restraining order yet still invites husband over.  Husband visits wife, then they get into an argument, and wife calls the police, saying that husband is violating the restraining order.  Husband says, "But she invited me over, and I have the phone records to prove it!"  Although that doesn't matter legally, it does matter factually.  Sometimes the police get fed up playing marital-therapist-with-a-gun.

I'm not saying the police should have ignored Gonzales' cries for help -- It seems she was very sincere.  But I can understand why the police did not drop everything, given the nature of the restraining order game.

UPDATE:  Counting heads, we see that four of the DeShaney five remain on the Court - Rehnquist, Stevens (yeah, I was surprised about that, too), O'Connor, and Kennedy. There's no question how Scalia and Thomas will vote.  At most, two justices would defect.  But Kennedy will not side against Castle Rock.

So even if Stevens and O'Connor switch, there will be a 5-4 majority. (Rehnquist will not let this case turn out otherwise, and no matter how sick he is, will participate).  Though I doubt this case will be that close.