DeShaney v. Winnebago County
Encyclopedia
DeShaney v. Winnebago County was a case decided by the Supreme Court of the United States
on February 22, 1989. The Court held that a state government agency's failure to prevent child abuse
by a custodial parent does not violate the child's right to liberty for the purposes of the Fourteenth Amendment to the United States Constitution
.
gave custody of Joshua DeShaney, born in 1979, to his father Randy DeShaney, who moved to Winnebago County, Wisconsin
. A police report of child abuse and a hospital visit in January, 1983, prompted the county Department of Social Services (DSS) to obtain a court order to keep the boy in the hospital's custody. Three days later, "On the recommendation of a 'child protection team,' consisting of a pediatrician, a psychologist, a police detective, the county's lawyer, several DSS caseworkers, and various hospital personnel, the juvenile court dismissed the case and returned the boy to the custody of his father." The DSS entered an agreement with the boy's father, and five times throughout 1983, a DSS social worker visited the DeShaney home and recorded suspicion of child abuse and that the father was not complying with the agreement's terms. No action was taken; the DSS also took no action to remove the boy from his father's custody after a hospital reported child abuse suspicions to them in November, 1983. Visits in January and March, 1984, in which the worker was told Joshua was too ill to see her, also resulted in no action. Following the March, 1984, visit, "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." Randy DeShaney served less than two years in jail.
. The lawsuit claimed that by failing to intervene and protect him from violence about which they knew or should have known, the agency violated Joshua's right to liberty without the due process
guaranteed to him by the Fourteenth Amendment to the United States Constitution.
The United States District Court for the Eastern District of Wisconsin
issued a summary judgment
against Joshua and his mother, who appealed to the Seventh Circuit Court of Appeals
. In an opinion authored by Judge Richard Posner
, the appellate court affirmed the summary judgment, and the Supreme Court granted certiorari
on March 21, 1988.
, held that the Due Process Clause protects against state action only, and as it was Randy DeShaney who abused Joshua, a state actor
(the Winnebago County Department of Social Services) was not responsible.
Furthermore, they ruled that the DSS could not be found liable, as a matter of constitutional law, for failure to protect Joshua DeShaney from a private actor. Although there exist conditions in which the state (or a subsidiary agency, like a county department of social services) is obligated to provide protection against private actors, and failure to do so is a violation of 14th Amendment rights, the court reasoned "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... 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.". Since Joshua DeShaney was not in the custody of the DSS, the DSS was not required to protect him from harm. In reaching this conclusion, the court opinion relied heavily on its precedents in Estelle v. Gamble
and Youngberg v. Romeo
.
Rehnquist's opinion stated that although the DSS's failure to act may have made it liable for a tort
under Wisconsin state law, the 14th Amendment does not transform every tort by a state actor into a violation of Constitutional Rights. Specifically, the act of creating a Department of Social Services to investigate and respond to allegations of child abuse may have meant that Winnebago County assumed a duty to prevent what Randy DeShaney did to Joshua DeShaney, and failure to fulfill that duty may have constituted a tort.
, asserted that whether or not the Due Process Clause gave Joshua DeShaney a constitutional right to protection against abuse was a non-sequitur, since it was not an argument presented to either of the lower courts or even to the Supreme Court and "no one, in short, has asked the Court to proclaim that, as a general matter, the Constitution safeguards positive
as well as negative
liberties." He went on to say that Rehnquist used a flawed interpretation of the Estelle and Youngberg precedents, which Brennan would hold "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." Finally, Brennan argued that the Wisconsin child-protection laws created a regime in which private citizens and government bodies other than a Department of Social Services had no power or role to intervene with child abuse other than notifying the DSS. As such, Brennan held that the child-protection laws constituted the same custodial "deprivation of liberty" that Rehnquist's opinion held necessary for a Due Process violation.
A second, shorter but more famous, dissent was written by Associate Justice Harry Blackmun
, who had (along with Associate Justice Thurgood Marshall
) joined in Brennan's dissent. In the first of his four paragraphs, Blackmun reiterated Brennan's contention that there had been state action in establishing a DSS that promised to provide protection against child abuse and absolved all other state and non-state actors of the responsibility or authority to act. He went on to compare the court's ruling to the Dred Scott case
, saying that in both cases the court upheld an injustice by choosing a restrictive interpretation of the constitution and then denying that choice.
President Bill Clinton
quoted the "Poor Joshua!" paragraph in his remarks on Blackmun's retirement, and the DeShaney v. Winnebago dissent was, along with his authorship of the Roe v. Wade
decision, the most widely referenced element of Blackmun's career in obituaries following his death. It was also quoted as the headline for Time Magazine
's article on the decision.
law professor Michael C. Dorf
has written that "DeShaney was a legitimately difficult case about the point at which state indifference to private action that the Constitution does not regulate becomes unconstitutional 'state action.'"
In the lead-up, in June, 2010, to confirmation hearings
for Solicitor General Elena Kagan
's appointment to the Supreme Court by President
Barack Obama
, Linda Greenhouse
in The New York Times summarized:
The case had entered the confirmation process because Kagan was a law clerk to Justice Marshall when the appeal first arrived at the Court and wrote a memo to Marshall cautioning against taking the case (a) without a signal of wider support on the Court (the "Join 3" response: an agreement conditioned on another three justices first agreeing; Kagan called it the "Join 4" and was corrected by the Justice) and (b) because the Court was likely to rule, as it ultimately did, against the extension of the due process protection to find for the plaintiff in the case. Two Republican
Senators, John Kyl of Arizona
and Jeff Sessions
of Alabama
, had looked at other of Kagan's memos from her clerkship and found that they showed she "was highly opinionated and wanted to use the law to achieve specific policy results, rather than deciding legal questions on their merits." The senators, with Sessions being the senior Republican on the Senate Judiciary Committee
where the confirmation hearings were to open on June 28, didn't address the DeShaney memo directly. However, in the AP
report Greenhouse cited, "[t]he two senators cited notes Kagan wrote to Marshall in which she argued that the Supreme Court shouldn't take certain cases based on her fear that they would give its conservative majority the chance to scale back abortion and criminal rights, among others. ... Kyl called the memos 'troubling.'"
The book mentioned by Greenhouse is part of the University Press of Kansas
Series "Landmark Law Cases and American Society."
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
on February 22, 1989. The Court held that a state government agency's failure to prevent child abuse
Child abuse
Child abuse is the physical, sexual, emotional mistreatment, or neglect of a child. In the United States, the Centers for Disease Control and Prevention and the Department of Children And Families define child maltreatment as any act or series of acts of commission or omission by a parent or...
by a custodial parent does not violate the child's right to liberty for the purposes of the Fourteenth Amendment to the United States Constitution
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
.
Background
In 1980, a divorce court in WyomingWyoming
Wyoming is a state in the mountain region of the Western United States. The western two thirds of the state is covered mostly with the mountain ranges and rangelands in the foothills of the Eastern Rocky Mountains, while the eastern third of the state is high elevation prairie known as the High...
gave custody of Joshua DeShaney, born in 1979, to his father Randy DeShaney, who moved to Winnebago County, Wisconsin
Winnebago County, Wisconsin
Winnebago County is a county in the U.S. state of Wisconsin. As of 2009, the population estimate was 163,370. Its county seat is Oshkosh. Winnebago County is included in the Oshkosh, Wisconsin-Neenah, Wisconsin, Metropolitan Statistical Area.-Geography:...
. A police report of child abuse and a hospital visit in January, 1983, prompted the county Department of Social Services (DSS) to obtain a court order to keep the boy in the hospital's custody. Three days later, "On the recommendation of a 'child protection team,' consisting of a pediatrician, a psychologist, a police detective, the county's lawyer, several DSS caseworkers, and various hospital personnel, the juvenile court dismissed the case and returned the boy to the custody of his father." The DSS entered an agreement with the boy's father, and five times throughout 1983, a DSS social worker visited the DeShaney home and recorded suspicion of child abuse and that the father was not complying with the agreement's terms. No action was taken; the DSS also took no action to remove the boy from his father's custody after a hospital reported child abuse suspicions to them in November, 1983. Visits in January and March, 1984, in which the worker was told Joshua was too ill to see her, also resulted in no action. Following the March, 1984, visit, "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
Brain damage
"Brain damage" or "brain injury" is the destruction or degeneration of brain cells. Brain injuries occur due to a wide range of internal and external factors...
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." Randy DeShaney served less than two years in jail.
Case History
Joshua DeShaney's mother filed a lawsuit on his behalf against Winnebago County, the Winnebago County DSS, and DSS employees under 42 U.S.C. § 1983Civil Rights Act of 1871
The Civil Rights Act of 1871, , enacted April 20, 1871, is a federal law in force in the United States. The Act was originally enacted a few years after the American Civil War, along with the 1870 Force Act. One of the chief reasons for its passage was to protect southern blacks from the Ku Klux...
. The lawsuit claimed that by failing to intervene and protect him from violence about which they knew or should have known, the agency violated Joshua's right to liberty without the due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
guaranteed to him by the Fourteenth Amendment to the United States Constitution.
The United States District Court for the Eastern District of Wisconsin
United States District Court for the Eastern District of Wisconsin
The U.S. District Court for the Eastern District of Wisconsin serves the residents of twenty-eight counties from its two courthouses...
issued a summary judgment
Summary judgment
In law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case....
against Joshua and his mother, who appealed to the Seventh Circuit Court of Appeals
United States Court of Appeals for the Seventh Circuit
The United States Court of Appeals for the Seventh Circuit is a federal court with appellate jurisdiction over the courts in the following districts:* Central District of Illinois* Northern District of Illinois...
. In an opinion authored by Judge Richard Posner
Richard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
, the appellate court affirmed the summary judgment, and the Supreme Court granted certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
on March 21, 1988.
Ruling
The court ruled 6-3 to uphold the appeals court's grant of summary judgment. The DSS's actions were found not to constitute a violation of Joshua DeShaney's due process rights.Court Opinion
The court opinion, by Chief Justice William RehnquistWilliam Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
, held that the Due Process Clause protects against state action only, and as it was Randy DeShaney who abused Joshua, a state actor
State actor
In United States law, a state actor is a person who is acting on behalf of a governmental body, and is therefore subject to regulation under the United States Bill of Rights, including the First, Fifth and Fourteenth Amendments, which prohibit the federal and state governments from violating...
(the Winnebago County Department of Social Services) was not responsible.
Furthermore, they ruled that the DSS could not be found liable, as a matter of constitutional law, for failure to protect Joshua DeShaney from a private actor. Although there exist conditions in which the state (or a subsidiary agency, like a county department of social services) is obligated to provide protection against private actors, and failure to do so is a violation of 14th Amendment rights, the court reasoned "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... 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.". Since Joshua DeShaney was not in the custody of the DSS, the DSS was not required to protect him from harm. In reaching this conclusion, the court opinion relied heavily on its precedents in Estelle v. Gamble
Estelle v. Gamble
Estelle v. Gamble, , was a case decided by United States Supreme Court that held that in order to state a cognizable Section 1983 claim for a violation of Eighth Amendment rights, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical...
and Youngberg v. Romeo
Youngberg v. Romeo
Youngberg v. Romeo, 457 U.S. 307 , was a landmark United States Supreme Court case regarding the rights of the involuntarily committed and mentally retarded. Nicholas Romeo was mentally retarded with an infant level IQ and was committed to a Pennsylvania state hospital...
.
Rehnquist's opinion stated that although the DSS's failure to act may have made it liable for a tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
under Wisconsin state law, the 14th Amendment does not transform every tort by a state actor into a violation of Constitutional Rights. Specifically, the act of creating a Department of Social Services to investigate and respond to allegations of child abuse may have meant that Winnebago County assumed a duty to prevent what Randy DeShaney did to Joshua DeShaney, and failure to fulfill that duty may have constituted a tort.
Dissents
The court's ruling generated two dissents. The first, by Associate Justice William BrennanWilliam J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
, asserted that whether or not the Due Process Clause gave Joshua DeShaney a constitutional right to protection against abuse was a non-sequitur, since it was not an argument presented to either of the lower courts or even to the Supreme Court and "no one, in short, has asked the Court to proclaim that, as a general matter, the Constitution safeguards positive
Positive liberty
Positive liberty is defined as having the power and resources to fulfill one's own potential ; as opposed to negative liberty, which is freedom from external restraint...
as well as negative
Negative liberty
Negative liberty is defined as freedom from interference by other people, and is set in contrast to positive liberty, which is defined as an individual's freedom from inhibitions of the social structure within the society such as classism, sexism or racism and is primarily concerned with the...
liberties." He went on to say that Rehnquist used a flawed interpretation of the Estelle and Youngberg precedents, which Brennan would hold "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." Finally, Brennan argued that the Wisconsin child-protection laws created a regime in which private citizens and government bodies other than a Department of Social Services had no power or role to intervene with child abuse other than notifying the DSS. As such, Brennan held that the child-protection laws constituted the same custodial "deprivation of liberty" that Rehnquist's opinion held necessary for a Due Process violation.
A second, shorter but more famous, dissent was written by Associate Justice Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
, who had (along with Associate Justice Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
) joined in Brennan's dissent. In the first of his four paragraphs, Blackmun reiterated Brennan's contention that there had been state action in establishing a DSS that promised to provide protection against child abuse and absolved all other state and non-state actors of the responsibility or authority to act. He went on to compare the court's ruling to the Dred Scott case
Dred Scott v. Sandford
Dred Scott v. Sandford, , also known as the Dred Scott Decision, was a ruling by the U.S. Supreme Court that people of African descent brought into the United States and held as slaves were not protected by the Constitution and could never be U.S...
, saying that in both cases the court upheld an injustice by choosing a restrictive interpretation of the constitution and then denying that choice.
Poor Joshua lament
However, Blackmun's dissent is famous due to its fourth paragraph which is as follows:- "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."
President Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
quoted the "Poor Joshua!" paragraph in his remarks on Blackmun's retirement, and the DeShaney v. Winnebago dissent was, along with his authorship of the Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
decision, the most widely referenced element of Blackmun's career in obituaries following his death. It was also quoted as the headline for Time Magazine
Time (magazine)
Time is an American news magazine. A European edition is published from London. Time Europe covers the Middle East, Africa and, since 2003, Latin America. An Asian edition is based in Hong Kong...
's article on the decision.
Subsequent attention to ruling
CornellCornell Law School
Cornell Law School, located in Ithaca, New York, is a graduate school of Cornell University and one of the five Ivy League law schools. The school confers three law degrees...
law professor Michael C. Dorf
Michael C. Dorf
Michael C. Dorf is an American law professor and a noted U.S. constitutional law scholar. He is currently a Professor of Law at Cornell Law School. In addition to constitutional law, Professor Dorf has taught courses in civil procedure and federal courts...
has written that "DeShaney was a legitimately difficult case about the point at which state indifference to private action that the Constitution does not regulate becomes unconstitutional 'state action.'"
In the lead-up, in June, 2010, to confirmation hearings
Elena Kagan Supreme Court nomination
On May 10, 2010, President Barack Obama announced his selection of Elena Kagan for Associate Justice of the Supreme Court of the United States, to replace retiring Justice John Paul Stevens...
for Solicitor General Elena Kagan
Elena Kagan
Elena Kagan is an Associate Justice of the Supreme Court of the United States, serving since August 7, 2010. Kagan is the Court's 112th justice and fourth female justice....
's appointment to the Supreme Court by President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
, Linda Greenhouse
Linda Greenhouse
Linda Greenhouse is the Knight Distinguished Journalist in Residence and Joseph M. Goldstein Senior Fellow at Yale Law School...
in The New York Times summarized:
- "Two decades later, the DeShaney decision remains a subject of contention. It has prompted a large literature, including at least one book (The DeShaney Case: Child Abuse, Family Rights and the Dilemma of State Intervention, by Lynne Curry) and many law review articles. Lower courts have cited it hundreds of times. The Supreme Court is regularly asked to revisit the issue and regularly declines, without comment, to do so."
The case had entered the confirmation process because Kagan was a law clerk to Justice Marshall when the appeal first arrived at the Court and wrote a memo to Marshall cautioning against taking the case (a) without a signal of wider support on the Court (the "Join 3" response: an agreement conditioned on another three justices first agreeing; Kagan called it the "Join 4" and was corrected by the Justice) and (b) because the Court was likely to rule, as it ultimately did, against the extension of the due process protection to find for the plaintiff in the case. Two Republican
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
Senators, John Kyl of Arizona
Arizona
Arizona ; is a state located in the southwestern region of the United States. It is also part of the western United States and the mountain west. The capital and largest city is Phoenix...
and Jeff Sessions
Jeff Sessions
Jefferson Beauregard "Jeff" Sessions III is the junior United States Senator from Alabama. First elected in 1996, Sessions is a member of the Republican Party...
of Alabama
Alabama
Alabama is a state located in the southeastern region of the United States. It is bordered by Tennessee to the north, Georgia to the east, Florida and the Gulf of Mexico to the south, and Mississippi to the west. Alabama ranks 30th in total land area and ranks second in the size of its inland...
, had looked at other of Kagan's memos from her clerkship and found that they showed she "was highly opinionated and wanted to use the law to achieve specific policy results, rather than deciding legal questions on their merits." The senators, with Sessions being the senior Republican on the Senate Judiciary Committee
United States Senate Committee on the Judiciary
The United States Senate Committee on the Judiciary is a standing committee of the United States Senate, of the United States Congress. The Judiciary Committee, with 18 members, is charged with conducting hearings prior to the Senate votes on confirmation of federal judges nominated by the...
where the confirmation hearings were to open on June 28, didn't address the DeShaney memo directly. However, in the AP
Associated Press
The Associated Press is an American news agency. The AP is a cooperative owned by its contributing newspapers, radio and television stations in the United States, which both contribute stories to the AP and use material written by its staff journalists...
report Greenhouse cited, "[t]he two senators cited notes Kagan wrote to Marshall in which she argued that the Supreme Court shouldn't take certain cases based on her fear that they would give its conservative majority the chance to scale back abortion and criminal rights, among others. ... Kyl called the memos 'troubling.'"
The book mentioned by Greenhouse is part of the University Press of Kansas
University Press of Kansas
The University Press of Kansas is a publisher that represents the six state universities in the US state of Kansas — Emporia State University, Fort Hays State University, Kansas State University, Pittsburg State University, the University of Kansas, and Wichita State University...
Series "Landmark Law Cases and American Society."
See also
- List of United States Supreme Court cases, volume 489
- List of United States Supreme Court cases
- Lists of United States Supreme Court cases by volume
- List of United States Supreme Court cases by the Rehnquist Court