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Published online by Cambridge University Press: 24 February 2021
In December 1995, the Eighth Circuit decided Kennedy v. Schafer, holding that a teenage patient who committed suicide while under treatment at a state psychiatric facility had a constitutionally protected liberty interest in a safe and humane environment under the Due Process Clause of the Fourteenth Amendment if her status changed from voluntary to involuntary during the course of her admission. The fifteen year old patient, Kathleen Kennedy, had been identified as a suicide risk, and had been placed on “Protective Suicide Precautions,” which required a designated staff member to keep her in constant eyesight and to interact with her at fifteen to twenty minute intervals. Despite these stringent requirements for supervision and contact, Kathleen was found dead in her room more than two hours after her last contact with a staff member. Her parents brought suit under 42 U.S.C. § 1983 against state and hospital officials, alleging that chronic understaffing and falsification of the records used to determine staffing levels amounted to a pattern of deliberate indifference to patient safety which violated their daughter’s protected liberty interest in a safe and humane environment.
With thanks to Pnina Lahav, Professor of Law, Boston University School of Law, for sparking my interest in constitutional issues. Additional thanks to my fellow journal members, particularly Sara Bienkowski for her tireless editing and other selfless acts. Above all, thanks to my family for their support and encouragement.
1 71 F.3d 292 (8th Cir. 1995).
2 The Due Process Clause provides: "nor shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. CONST, amend. XIV, § 1.
3 See Kennedy, 71 F.3d at 293-95.
4 See id. at 293.
5 See id.
6 The statute provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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.
42 U.S.C. § 1983 (1994).
Section 1983 grants a remedy for infringement of rights conferred by the Constitution or created by federal law. See Greenfield, Adam Michael, Note, Annie Get Your Gun ‘Cause Help Ain't Comin': The Need for Constitutional Protection from Peer Abuse in Public Schools, 43 Duke L.J. 588, 593 (1993)CrossRefGoogle Scholar. To establish a constitutional claim under § 1983, the plaintiff must show that the state deprived her of a constitutionally protected liberty interest and the deprivation caused injury to the plaintiff. See Bjorklund, Dennis A., Crossing DeShaney: Can the Gap Be Closed Between Child Abuse in the Home and the State’s Duty to Protect?, 75 Iowa L. Rev. 791, 792 n.7 (1990)Google Scholar. The state actor must have acted with the requisite level of culpability—either deliberate indifference in the face of a constitutional duty or failure to exercise professional judgment. See id. at 817; see also Young Chou, Cristina Chi-, Renewing the Good Intentions of Foster Care: Enforcement of the Adoption Assistance and Child Welfare Act of 1980 and the Substantive Due Process Right to Safety, 46 Vand. L. Rev. 683, 709-10 (1993)Google Scholar (discussing the “deliberate indifference” and “professional judgment” standards for determining state liability for failure to protect foster children from abuse); Ryan, Kevin M., Stemming the Tide of Foster Care Runaways: A Due Process Perspective, 42 Cath. U. L. Rev. 271, 289 n.90 (1993)Google Scholar (describing the elements of a § 1983 claim).
7 See Kennedy, 71 F.3d at 293-94.
8 See id. at 294.
9 See DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195 (1989); Young- berg v. Romeo, 457 U.S. 307, 317 (1982).
10 See Estelle v. Gamble, 429 U.S. 97 (1976) (holding that prison officials have a duty to pro vide inmates with necessary medical care).
11 The term commitment may refer to the confinement of an individual in a mental health facil ity such as a hospital, for treatment (in the case of the mentally ill) or training and habilitation (in the case of the mentally retarded). See Black’s Law Dictionary 273 (6th ed. 1990). Commitment may be voluntary, by consent of the patient or guardian, or involuntary, by order of the court. See id.; infra Part II. This Note uses the term admission to denote an inpatient stay in a hospital or similar facility, whether voluntary or involuntary.
12 See Youngberg, 457 U.S. at 315 (analogizing to prisoners’ rights in holding that an involun tarily committed patient’s “right to personal security constitutes a ‘historic liberty interest’ protected substantively by the Due Process Clause . . . [which] is not extinguished by lawful confinement”).
Although the needs and abilities of mentally retarded individuals differ significantly from those of individuals suffering from serious mental illness, the conditions under which the state confines these groups are sufficiently similar to allow for a collective analysis of their right to a safe and humane environment. This Note will use the term mentally ill to refer to individuals suffering from serious mental illness. The term patient may refer to either mentally ill or mentally retarded individuals in need of care or treatment.
13 See Kennedy v. Schafer, 71 F.3d 292, 294 (8th Cir. 1995). The court remanded to the lower court for a determination of whether the state had so restricted her ability to act on her own behalf that she became de facto involuntarily committed. See id. at 296.
14 Compare DeShaney, 489 U.S. 189 (holding that the state had no duty to protect a child from abuse by his father by removing him from his father’s custody because due process protections are not triggered when the state does not act to restrain an individual’s liberty), with Youngberg, 457 U.S. 307 (holding that a mentally retarded adult involuntarily committed to a state facility had a liberty interest in reasonably safe conditions of confinement under the due process clause of the fourteenth amendment).
15 457 U.S. 307.
16 489 U.S. 189.
17 Black’s Law Dictionary, supra note 11, at 273.
18 See id.
19 See Parry, John, Involuntary Civil Commitment in the 90s: A Constitutional Perspective, 18 Mental & Physical Disability L. Rep. 320, 320-21 (1994)Google Scholar. For example, Parry identifies the following “policy perspectives" (among others) as contributing to the debate about what form commitment should take: civil liberties, medical model, family model, consumer model, fiscal con servatism, nihilism and public safety. See id.
20 See id. at 321-22; see also Black’s Law Dictionary, supra note 11, at 1575. Parry iden tifies the eight types as informal commitment, voluntary commitment, third-party commitment, short-term commitment, extended commitment, outpatient commitment, criminal commitment and recommitment. See Parry, supra note 19, at 321-27.
21 See Parry, supra note 19, at 321.
22 See id.; see also Gilboy, Janet A. & Schmidt, John R., “Voluntary" Hospitalization of the Mentally III, 66 Nw. U. L. Rev. 429 (1971)Google Scholar. The authors’ study of the use of voluntary hospitaliza tion of the mentally ill in Illinois revealed that informal admission was “almost never utilized.” See id. at 432. This may occur because hospitals decline admission to patients when staff members are unwilling to invest time and resources because they doubt the patient intends to remain in the hospi tal long enough for treatment to be effective. See SPRING, RAYMOND L. ET AL., Patients, Psy Chiatrists and Lawyers: Law and the Mental Health System 332 (1989)Google Scholar.
23 See Parry, supra note 19, at 321.
24 See id. at 321-22.
25 See id. at 322.
26 See Black’s Law Dictionary, supra note 11, at 827.
27 See O'Connor v. Donaldson, 422 U.S. 563, 575-76 (1975) (holding that the state’s involun tary civil commitment of a nondangerous patient with access to resources allowing him to live safely in the community violated the patient’s constitutional right to liberty). For a discussion of the de velopment of the legal standards for involuntary commitment in relation to increased patient auton omy and the right to treatment in the community, see Wisor, Ronald L. Jr., Community Care, Com petition and Coercion: A Legal Perspective on Privatized Mental Health Care, 19 Am. J.L. & Med. 145, 149-51 (1993)CrossRefGoogle Scholar. Wisor notes that two thirds of the states recognize the following types of “danger" as the legal standard for civil commitment: "(1) danger to self; (2) danger to others; (3) ‘gravely disabled’ by mental illness. The ‘gravely disabled’ standard encompasses individuals who are dangerous to themselves because they are unable to provide for basic needs (such as nourishment or shelter) or to protect themselves in the community.” Id. at 151 n.47 (citations omitted).
28 See Wisor, supra note 27, at 162-65 (discussing mental patients’ right to refuse treatment and the circumstances under which the court may override that right with substituted judgment).
29 See Parry, supra note 19, at 322; Wisor, supra note 27, at 150. The state must generally af ford involuntarily confined patients’ procedural due process protections similar to those guaranteed criminal defendants. See id.; see also Lessard v. Schmidt, 349 F. Supp. 1078, 1090-93, 1097-1103 (E.D. Wis. 1972) (finding that patients in civil commitment proceedings are entitled to notice of charges, a prompt hearing, representation of counsel and the privilege against self-incrimination).
30 See Parry, supra note 19, at 322.
31 See id.
32 Id. at 322.
33 See id.
34 See id.
35 See id. Criminal commitment involves involuntary treatment of pretrial detainees, persons found incompetent to stand trial, those acquitted by reason of insanity and convicted criminals later found incompetent. See id. Treatment may occur within the criminal justice system or in a mental health facility. See id.
36 National Task Force on Guidelines for Involuntary Civil Commitment, Guidelines for Invol untary Civil Commitment, 10 Mental & Physical Disability L. Rep. 409, 415 (1986)Google Scholar [hereinafter Guidelines].
37 See id.
38 Parry, supra note 19, at 322-23; see discussion supra note 27.
39 See Parry, supra note 19, at 323; Wisor, supra note 27, at 150.
40 See Guidelines, supra note 36, at 415.
41 See id. at 413.
42 See id. at 477.
43 See Wisor, supra note 27, at 174.
44 See Guidelines, supra note 36, at 477.
45 See id.
46 See id.
47 See id.
48 See id.; text accompanying supra note 23.
49 See Spring et al., supra note 22, at 332.
50 See Guidelines, supra note 36, at 477.
51 See text accompanying supra notes 36-46.
52 See text accompanying supra notes 36-46.
53 See Walton v. Alexander, 44 F.3d 1297, 1310 (5th Cir. 1995) (Parker, J., concurring spe cially) (noting that the distinction ensures “that those state actors entrusted with the responsibility to care for and protect our most vulnerable citizens may do so with constitutional impunity—regardless of their conduct—[and] produces a result that surely must appear absurd to the average citizen”); Harper v. Cserr, 544 F.2d 1121, 1123 (1st Cir. 1976) (finding that an approach that avoids the dis tinction is, “on humane grounds, hard to fault”); Association for Retarded Citizens of North Dakota v. Olson, 561 F. Supp. 473, 485 (D.N.D. 1982) (stating that the notion that an individual’s liberty is less worthy of protection because he has consented to confinement leads to a result that “shocks the conscience”).
54 457 U.S. 307(1982).
55 See Goodman v. Parwatikar, 570 F.2d 801, 804 (8th Cir. 1978) (holding that once admitted, whether voluntarily or involuntarily, the mentally ill patient “had a constitutional right to a basically safe and humane living environment”); Wyatt v. Aderholt, 503 F.2d 1305, 1308, 1312 (5th Cir. 1974) (upholding ruling in class action that state institutions for the mentally retarded and mentally ill were constitutionally required to provide “a humane physical and psychological environment" as a fundamental condition for providing adequate and appropriate treatment), qff'g Wyatt v. Stickney, 334 F. Supp. 1341 (M.D. Ala. 1971); Spence v. Staras, 507 F.2d 554, 557 (7th Cir. 1974) (finding that a nonverbal mentally ill patient in a state hospital has a fourteenth amendment right “to be se cure in his life and person while confined under state authority”); Seide v. Prevost, 536 F. Supp. 1121, 1135 (S.D.N.Y. 1982) (stating that psychiatric patients at state hospitals have a constitutional right to safety while in state custody); New York State Ass'n for Retarded Children, Inc. v. Rocke feller, 357 F. Supp. 752, 764-65 (E.D.N.Y. 1973) (finding that retarded residents in state institution had the right to safe living conditions).
56 See, e.g., Goodman, 570 F.2d at 802; Spence, 507 F.2d at 556; Seide, 536 F. Supp. at 1124; see also supra note 6 (explaining the elements of a § 1983 claim).
57 See Harper, 544 F.2d at 1123; Spence, 507 F.2d at 557; Seide, 536 F. Supp. at 1134; New York State Ass ‘n for Retarded Children, 357 F. Supp. at 764.
58 The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend. VIII.
59 See Hutto v. Finney, 437 U.S. 678, 685 (1978) (affirming lower courts’ holding that solitary confinement for more than 30 days may constitute cruel and unusual punishment); Estelle v. Gam ble, 429 U.S. 97, 102 (1976) (holding that prison officials’ deliberate indifference to a prisoner’s serious illness constituted cruel and unusual punishment).
60 See Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982).
61 Id. at 315-16.
62 See id. at 309.
63 See id. at 310.
64 See id.
65 Id. at 324.
66 See id. at 315.
67 Id. (citing Ingraham v. Wright, 430 U.S. 651, 673 (1977); Hutto v. Finney, 437 U.S. 678 (1978)).
68 See Savidge v. Fincannon, 836 F.2d 898, 907-08 (5th Cir. 1988) (holding that a voluntarily admitted retarded child subjected to health-threatening conditions in a state facility had a § 1983 claim for deprivation of his constitutional right to minimally adequate shelter and medical care); Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1245 (2d Cir. 1984) (finding that mentally retarded children in a state institution were entitled to safe conditions and freedom from undue restraint under the due process clause, whether voluntarily or involuntarily admitted); Kolpak v. Bell, 619 F. Supp. 359, 378 (N.D. 111. 1985) (stating that parents of a mentally retarded patient beaten to death by a fellow patient had a claim for violation of son’s substantive due process right to a safe environment); Association for Retarded Citizens of North Dakota v. Olson, 561 F. Supp. 473, 485-86 (D.N.D. 1982), aff'd, 713 F.2d 1384 (8th Cir. 1983) (upholding finding that mentally handicapped residents of a state school had a right to reasonably safe conditions whether or not they consented to admission).
69 See, e.g.. Society for Good Will to Retarded Children, 737 F.2d at 1246; Association for Re tarded Citizens of North Dakota, 561 F. Supp. at 485 n.13.
70 See, e.g., Association for Retarded Citizens of North Dakota, 561 F. Supp. at 485.
It is obvious that when a person submits to confinement in a state institution he surrenders some of the rights to freedom of movement that he would enjoy outside the institution. But the institutionalized retarded person retains residual rights to liberty . . . [which are] violated when the institution officials or their agents place the resident in conditions which are not reasonably safe.
Id.
71 561 F. Supp. 473 (D.N.D. 1982).
72 See id. at 485.
73 See id.
74 836 F.2d 898 (5th Cir. 1988).
75 Id. at 907 n.44 (quoting Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982)). 76 Id.
77 See Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1245 n.4 (2d Cir. 1984); Kolpak v. Bell, 619 F. Supp. 359, 378 (N.D. III. 1985); Association for Retarded Citizens of North Dakota, 561 F. Supp. at 484.
78 Kolpak, 619 F. Supp. at 378-79 (declaring that although the patient was admitted voluntar ily, “he may well have had only a de jure, and not a de facto, right to leave”).
79 See infra note 121 and accompanying text.
80 See Savidge, 836 F.2d at 908 n.44 (noting that “Savidge’s confinement at the [state facility] was no more ‘voluntary’ than Romeo’s confinement,” and citing to a passage in Youngberg indicat ing that Romeo’s mother petitioned for his permanent admission to the state facility due to her in ability to control him); Society for Good Will to Retarded Children, Til F.2d at 1245 n.4 (noting that plaintiffs were “unlikely to have sufficient understanding to recognize that they are being admit ted to a school for the mentally retarded and to understand the distinction between voluntary and involuntary status or the provisions governing release”); Association for Retarded Citizens of North Dakota, 561 F. Supp. at 484.
[T]he plaintiffs . . . have not, in most cases, voluntarily consented to their confinement in any meaningful sense of the word ‘voluntary.’ . . . [I]n the case of plaintiffs who are severely retarded, informed consent is not even possible. And even in the case of the plaintiffs who are capable of giving informed consent to admission, it may be questioned whether such consent is voluntary in light of pressures from family and the high cost and unavailability of alternative care.
Id.
81 See Savidge, 836 F.2d at 907-08; Society for Good Will to Retarded Children, Til F.2d at 1245; Kolpak, 619 F. Supp. at 378; Association for Retarded Citizens of North Dakota, 561 F. Supp. at 485.
82 489 U.S. 189 (1989).
83 See generally Blum, Karen M., DeShaney: Custody, Creation of Danger, and Culpability, 27 Loy. L.A. L. Rev. 435 (1994)Google Scholar (discussing the post-DeShaney substantive due process right to state protection from acts of private violence).
84 See DeShaney, 489 U.S. at 193.
85 Id. at 195 (citing Ingraham v. Wright, 430 U.S. 651, 673 (1977)). 86See id. at 195.
87 See id. at 197-98.
88 Id. at 200.
89 Id. at 199-200.
90 Id. at 200.
91 See Blum, supra note 83, at 435.
92 See United States v. Pennsylvania, 832 F. Supp. 122, 125 (E.D. Pa. 1993) (“[W]henever a state accepts mentally handicapped individuals into its facilities, it cannot create or maintain those facilities in a manner which deprives those individuals of the basic necessities of life.” (quoting Halderman v. Pennhurst State Sch. & Hosp., 446 F. Supp. 1295, 1310-11 (E.D. Pa. 1977)); Heufner, Steven F., Affirmative Duties in the Public Schools After DeShaney, 90 Colum. L. Rev. 1940, 1948 (1990)CrossRefGoogle Scholar; Oren, Laura, DeShaney‘s Unfinished Business: The Foster Child’s Due Process Right to Safety, 69 N.C. L. Rev. 113, 127-30 (1990)Google Scholar.
93 See Blum, supra note 83, at 442-43; Greenfield, supra note 6, at 597.
94 See, e.g., Walton v. Alexander, 44 F.3d 1297, 1304 (5th Cir. 1995) (recognizing that under DeShaney, “if the person claiming the right of state protection is voluntarily within the care or cus tody of a state agency, he has no substantive due process right to the state’s protection”); Monahan v. Dorchester Counseling Ctr., 961 F.2d 987, 992 (1st Cir. 1992) (finding no substantive due process right to safety under DeShaney because voluntary patient was free to leave the facility); Higgs v. Latham, No. 91-5273, 1991 WL 21646, at *4 (6th Cir. Oct. 24, 1991) (holding that DeShaney affords due process rights only to involuntarily committed patients); Fialkowski v. Greenwich Home for Children, Inc., 921 F.2d 459, 466 (3rd Cir. 1990) (noting that DeShaney limits the constitutional duty to provide protection to “cases in which a person is taken into state custody against his will); see also Wilson v. Formigoni, 832 F. Supp. 1152, 1156-57 (N.D. 111. 1993) (reviewing case law), aff'd on other grounds, 42 F.3d 1060 (7th Cir. 1994).
95 See, e.g., Walton, 44 F.3d at 1305.
96 See id:, see also Monahan, 961 F.2d at 992; Higgs, 1991 WL 21646, at *4; Fialkowski, 921 F.2d at 465.
97 See Blum, supra note 83, at 444 n.43; Williams, Elizabeth, Annotation, Action Under, 42 USCS § 1983 Against Mental Institution or Its Staff for Injuries to Institutionalized Person, 118 A.L.R. Fed. 519, 538-39 (1996)Google Scholar.
98 See Neely v. Feinstein, 50 F.3d 1502, 1507 (9th Cir. 1995) (holding that mental patients in state institutions have a right to personal security); Jackson v. Fort Stanton Hosp. & Training Sch., 964 F.2d 980, 991 (10th Cir. 1992) (stating that the “Due Process Clause imposes a duty to provide safe living conditions [to] disabled persons who are institutionalized or wholly dependent on the state”).
99 See infra notes 100-24 and accompanying text.
100 71 F.3d 292 (8th Cir. 1995); see also discussion supra Part I.
101 See text accompanying supra notes 1-13.
102 See Kennedy, 71 F.3d at 294.
103 Id. at 295 (quoting DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 201 n.9 (1989)).
104 See Savidge v. Fincannon, 836 F.2d 898, 908 n.44 (5th Cir. 1988); Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1246 n.4 (2d Cir. 1984); Kolpak v. Bell, 619 F. Supp. 359, 378-79 (N.D. 111. 1985); Association for Retarded Citizens of North Dakota v. Olsen, 561 F. Supp. 473, 484 (D.N.D. 1982); see also supra notes 77-81 and accompanying text.
105 See Walton v. Alexander, 44 F.3d 1297, 1306 (5th Cir. 1995); Estate of Cassara v. Illinois, 853 F. Supp. 273, 279 (N.D. 111. 1994) (finding that a voluntary mental health patient is both con senting to treatment and is “being committed under the control of the state”).
106 44 F.3d 1297 (en banc). The Walton majority held that the state had no duty to protect a voluntary resident of a state school for the deaf from sexual assault. See id. at 1306. Concurring Judge Parker disagreed, stating that the court should have determined whether the state sufficiently restrained the minor resident’s personal liberty to give rise to a corresponding duty to insure his safety and well-being from sexual molestation by a fellow student. See id. at 1307 (Parker, J., con curring specially).
107 See id. at 1306-07.
108 See id.
109 853 F. Supp. 273.
110 71 F.3d 292.
111 Cassara, 853 F. Supp. at 275.
112 See id. at 279.
113 See id.
114 See Wilson v. Formigoni, 832 F. Supp. 1152, 1157 (N.D. 111. 1993).
115 United States v. Pennsylvania, 832 F. Supp. 122, 125 (E.D. Pa. 1993).
116 DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 200 (1989).
117 See Halderman v. Pennhurst State Sch. & Hosp., 784 F. Supp. 215, 222 (E.D. Pa. 1992).
118 See id. at 222. Approximately 50% of the residents had not been legally committed. See id.
119 See id. (quoting Halderman v. Pennhurst State Sch. & Hosp. 446 F. Supp. 1295, 1318 (E.D. Pa. 1977).
120 See Suffolk Parents of Handicapped Adults v. Pataki, 921 F. Supp. 970, 981 (granting pre liminary injunction against withdrawal of state funding for transitional care of disabled patients in out-of-state institutions), motion for stay pending appeal denied in part, 924 F. Supp. 431, 439 (E.D.N.Y. 1996).
121 Informed consent refers to a patient’s ability to choose what happens to him based on a full understanding of the risks, benefits and alternatives to a proposed treatment or procedure. See Black’s Law Dictionary, supra note 11, at 779.
122 Association for Retarded Citizens of North Dakota v. Olson, 561 F. Supp. 473, 484 (D.N.D. 1982); see also New York State Ass'n for Retarded Children v. Rockefeller, 357 F. Supp. 752, 764- 65 (E.D.N.Y. 1973) (although patients were “voluntary" in that the state did not assert the right to confine them, they were “behind locked gates" and not capable of “meaningful waiver of their right to freedom”).
123 See Harper v. Cserr, 544 F.2d 1121, 1123 (1st Cir. 1976) (holding that a voluntary mentally ill patient’s eighth amendment rights might be violated by wanton callousness on the part of those caring for her if she was so helpless as to render her a de facto prisoner).
124 Id.
125 See Seide v. Prevost, 536 F. Supp. 1121, 1136 (S.D.N.Y. 1982) (citing 42 U.S.C. § 1983). The Equal Protection Clause provides: "No state shall. . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1.
126 536 F. Supp. 1121.
127 Id. at 1136 (citations omitted).
128 Kolpak v. Bell, 619 F. Supp. 359, 378 (N.D. 111. 1985).
129 Association for Retarded Citizens of North Dakota v. Olson, 561 F. Supp. 473, 485 n.14 (D.N.D. 1992) (citing Mason, Bruce G. & Menolascino, Frank J., The Right to Treatment for Mentally Retarded Citizens: An Evolving Legal and Scientific Interface, 10 Creighton L. Rev. 124, 127 (1976))Google ScholarPubMed.
130 DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197 n.3 (1989). The Court pointed out, however, that the plaintiff had not raised the equal protection argument. See id. Under equal protection doctrine, differential treatment of disfavored minorities generally receives “more exacting judicial scrutiny" than treatment of other groups. United States v. Carolene Prod ucts, 304 U.S. 144, 153 n.4 (discussing the standard for determining the constitutionality of legisla tive regulation in the context of a statute governing interstate transport of milk).
131 See Blum, supra note 83, at 437 n.8 (summarizing domestic violence cases); see also, e.g., Hynson v. City of Chester, 864 F.2d 1026, 1031 (3d Cir. 1988) (holding that police officers lose their qualified immunity to claims that facially neutral policy is discriminatory, if the officers know the policy is discriminatory); Watson v. City of Kansas City, 857 F.2d 690, 696 (10th Cir. 1988) (reversing lower court’s summary judgment because facts could support a jury finding that the city followed the discriminatory policy of affording less protection to victims of domestic violence than to victims of nondomestic attacks); Pinder v. Commissioners of Cambridge, 821 F.Supp. 376, 386 (D. Md. 1993) (holding that the police department maintained a policy that discriminated against victims of domestic violence in violation of § 1983).
132 See Blum, supra note 83, at 437 n.8.
133 See DeShaney, 489 U.S. at 210-12 (Brennan, J., dissenting). 134See id. at 212.
135 Teitelbaum, Lee & Ellis, James, The Liberty Interest of Children: Due Process Rights and Their Application, 12 Fam. L.Q. 153, 156 (1978)Google Scholar.
136 See Heufner, supra note 92, at 1943; Ryan, supra note 6, at 287 n.76; Greenfield, supra note 6, at 600.
137 See Bjorklund, supra note 6, at 794; see also Tribe, Laurence H., American Constitutional Law §§ 1-6, 8-9 (2d ed. 1988)Google Scholar (discussing affirmative government duties that arise from the due process clause).
138 Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) (“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 ....”).
139 See Heufner, supra note 92, at 1943; Ryan, supra note 6, at 287 n.76; Greenfield, supra note 6, at 600.
140 See DeShaney, 489 U.S. at 195.
[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. . . . [I]ts language cannot fairly be extended to impose an affirmative obligation on the State ....
Id.
141 See id. at 201; id. at 204 (Brennan, J., dissenting) (“[B]y 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 . . . .”); text accompanying supra note 135; see also Bjorklund, supra note 6, at 810 (discussing the Court’s characterization of the liberty interest).
142 DeShaney, 489 U.S. at 201.
143 See id.
144 See id. at 200.
145 Youngberg v. Romeo, 457 U.S. 307 (1982).
146 See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (holding that state prison officials’ with holding medical treatment from a prison inmate was unconstitutional under the eighth amendment); see also Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 241 (1983) (holding that under the due process clause, the state must provide medical services to suspects in police custody).
147 Ryan, supra note 6, at 291.
148 See DeShaney, 489 U.S. at 199-200.
149 See id. at 206-07 (Brennan, J., dissenting) (emphasizing that the state’s failure to act to protect Romeo, rather than its affirmative act of restraining him under involuntary commitment, led to his injuries).
150 See Bjorklund, supra note 6, at 794; Slim, Robert C., The Special Relationship Doctrine and the School Official’s Duty to Protect Students from Harm, 46 Baylor L. Rev. 215, 216 (1994)Google Scholar.
151 See Bjorklund, supra note 6, at 798.
152 See, e.g., Youngberg v. Romeo, 457 U.S. 307, 319 (1982) (“Romeo retains liberty interests in safety and freedom from bodily restraint.”); Ingraham v. Wright, 430 U.S. 651, 673-74 (1977) (finding that corporal punishment in school implicates the fourteenth amendment’s guarantee of freedom from bodily restraint and punishment, and procedural safeguards must be guaranteed); Estelle v. Gamble, 429 U.S. 97, 103 (1976) (finding that the government has an obligation to pro vide medical care to those being punished by incarceration); see also Smith v. Wade, 461 U.S. 30, 32-33 (1983) (imposing liability when government fails to protect an institutionalized individual from harm by third parties).
153 See Heufner, supra note 92, at 1944 n.22.
154 See id.; Slim, supra note 150, at 220-21.
155 See Slim, supra note 150, at 220-21.
156 See Ryan, supra note 6, at 291 n.106 (arguing that DeShaney rests on a “state creation of danger" test, and “leaves undisturbed a line of ‘police cases’ which have found a state duty to act in noncustodial situations where the state contributed to the danger" (citations omitted)); see also Bjorklund, supra note 6, at 796.
157 See Slim, supra note 150, at 222; see also Youngberg, 457 U.S. at 317; Estelle, 429 U.S. at 103.
158 DeShaney, 489 U.S. at 198 (citing Youngberg, 457 U.S. at 314-25; Estelle, 429 U.S. at 105-06).
159 See id. at 198.
160 See Bjorklund, supra note 6, at 814 n.213 (citing Goss v. Lopez, 419 U.S. 565, 574 (1975) (holding that a state must operate its public education system in conformance with constitutional principles even though it is under no obligation to provide public education); Perry v. Sindermann, 408 U.S. 593, 599 (1972) (finding that once conferred, the government may not withhold benefits in a manner inconsistent with constitutional due process)).
161 See DeShaney, 489 U.S. at 196-97.
162 See Heufner, supra note 92, at 1954-58 (“[l]t is the underlying dependency that actually obligates the state to act, not the state’s legal status. . . . Affirmative duties should exist whenever the state has created this dependency, regardless of whether it arises out of a relationship that is technically custodial [or involuntarily imposed].”); Ryan, supra note 6, at 294 (“The restraint that triggers individual substantive due process rights under a DeShaney or Youngberg analysis can be characterized not necessarily by physical confinement, though that may be part of it, but more gen erally by social blockades to private resources and methods.”); Slim, supra note 150, at 224 (“[T]he fundamental concern [in DeShaney] was the extent to which the state deprived Joshua of the ability to take care of himself or otherwise rendered him more vulnerable to the dangers he faced.”); Greenfield, supra note 6, at 609 (“In determining whether a set of circumstances constitutes custody for the purposes of establishing an affirmative duty [courts should focus on] ... the issues of con trol, dependency, and vulnerability.”).
163 See Slim, supra note 150, at 224.
164 See discussion supra Parts II, IV.B.2.
165 Ryan, supra note 6, at 302.
166 Chou, supra note 6, at 709.
167 See Blum, supra note 83, at 443-14; Chou, supra note 6, at 708-09; Mushlin, Michael B., Unsafe Havens: The Case for Constitutional Protection of Foster Children from Abuse and Neglect, 23 Harv. C.R.-C.L. L. Rev. 199, 237-42 (1988)Google Scholar; Oren, supra note 92, at 133-47; Ryan, supra note 6, at 307.
168 The Due Process Clause confers both substantive and procedural due process rights. See Daniels v. Williams, 474 U.S. 327, 337 (1985) (Stevens, J., concurring in the denial of a prisoner’s due process claims for personal injuries suffered due to the negligence of a state official). Substan tive due process bars absolutely “certain arbitrary government actions ‘regardless of the fairness of the procedures used to implement them.’” Id. (quoting majority opinion, 474 U.S. at 331). Proce dural due process requires that the government provide procedures insuring fairness before depriving an individual of life, liberty or property. See id.
169 See, e.g., Oren, supra note 92, at 138-39.
170 Blum, supra note 83, at 444; see also Chou, supra note 6, at 709 (noting that “[allowing such a voluntariness distinction to excuse official liability for extreme indifference to known safety and care hazards surely will be detrimental to children”).
171 See Blum, supra note 83, at 444; see also supra note 29 and accompanying text.
172 See Zinermon v. Burch, 494 U.S. 113, 117 n.4 (1990) (addressing the claim that the state violated a patient’s procedural due process rights by accepting his “voluntary" admission to a state psychiatric facility despite his incompetence, but not determining the constitutionally mandated procedures for admission to a mental hospital); Oren, supra note 92, at 137-40. The Court’s deci sion in Zinermon "presumes the importance of the genuiness of the patient’s ‘voluntary’ consent.” Id. at 138.
173 See Oren, supra note 92, at 137 (“The voluntariness or involuntariness of the confinement does not affect the substantive rights to safety and freedom from undue restraint, even though it may be relevant to the constitutionally required procedures to be followed in committing a patient to a state mental institution.”).
174 Chou, supra note 6, at 709; see Ryan, supra note 6, at 303.
175 See Kennedy v. Schafer, 71 F.3d 292, 293 (8th Cir. 1995) (noting that the institution ad vised the parents that if they did not voluntarily admit the patient she would be committed); Wilson v. Formigoni, 832 F. Supp. 1152, 1154 (N.D. 111. 1993) (finding that the facility advised the patient that if she did not withdraw her discharge request the facility would institute involuntary commit ment proceedings); see also Spring ET AL., supra note 22, at 332. “Perhaps the largest group [of voluntarily committed patients] consists of those who have ‘signed voluntarily’ under threat of for mal involuntary commitment proceedings; this group avoids the risk of being determined mentally ill when the likelihood of involuntary commitment is high.” Id.
176 See Spring ET AL., supra note 22, at 332; Guidelines, supra note 36, at 477; Ryan, supra note 6, at 303. Some patients are offered voluntary commitment in lieu of prosecution on criminal charges. See Spring ET AL., supra note 22, at 332.
177 See Guidelines, supra note 36, at 494; Ryan, supra note 6, at 303-04; see also Association for Retarded Citizens of North Dakota v. Olson, 561 F. Supp. 473, 484 (D.N.D. 1992); Halderman v. Pennhurst State Sch. & Hosp., 446 F. Supp. 1295, 1318 (E.D. Pa. 1978).
178 See Ryan, supra note 6, at 306. “Regardless of how or why the child enters substitute care, the parent is generally required to cede legal custody—the right to decide where the child lives and the kind of care he will receive—to the state’s foster care agency.” Id.; see text accompanying supra notes 47-50.
179 Oren, supra note 92, at 158.
180 See id. at 136; see also Owens, Howard, When Is a Voluntary Commitment Really Volun tary?, 47 Am. J. Orthopsychiatry 104, 105-07 (1977)CrossRefGoogle Scholar (giving examples of questionable voluntary admissions).
181 44 p.3d 1297, 1306 (5th Cir. 1995); see supra notes 105-08 and accompanying text.
182 Walton, 44 F.3d at 1309-10 (Parker, J., concurring specially).
183 See supra Parts III, IV.A., V.A; see also Blum, supra note 83, at 479 (proposing similar criteria for determining when the state owes an affirmative duty of protection).
184 See text accompanying supra note 164.
185 71 F.3d 292 (8th Cir. 1995).
186 See id. at 295.
187 See Suffolk Parents of Handicapped Adults v. Pataki, 921 F. Supp. 970, 981 (E.D.N.Y. 1996) (noting that the plaintiffs “certainly would not be released if they simply asked to be released”); see also Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1245 n.4 (2d Cir.1984) (finding that although patients were “technically voluntary,” they were unlikely to have sufficient understanding to appreciate the terms of their confinement or the conditions for release).
188 See supra note 160 and accompanying text.
189 See, e.g., Youngberg v. Romeo, 457 U.S. 307, 317 (1982) (“As a general matter, a State is under no constitutional duty to provide substantive services for those within its border. When a person is institutionalized—and wholly dependent on the State— ... a duty to provide certain serv ices and care does exist. . . .”); Society for Good Will to Retarded Children, Til F.2d at 1246.
Even granting that the State of New York was not required to build schools for the mentally retarded or admit voluntary residents, once it chose to house those voluntary residents, thus making them dependent on the state, it was required to do so in a manner that would not deprive them of constitutional rights.
Id.; see also Association for Retarded Citizens of North Dakota v. Olsen, 561 F. Supp. 473, 486 (D.N.D. 1982).
It should be noted that the mentally retarded have such rights [to safe conditions of confinement] only by virtue of the state’s decision to provide care and treatment facilities for them. The state has no affirmative duty to provide such facilities, but if it does, then it must operate those facilities in a manner consistent with the constitutional rights of the residents.
Id.; see also Taylor v. Ledbetter, 818 F.2d 791, 795 (11th Cir. 1987) (en banc), (finding that the state assumed responsibility for placing a foster child in a safe environment, and that action “placed an obligation on the state to insure the continuing safety of that environment”).
190 See Heufner, supra note 92, at 1956-57.
191 See infra notes 193-96 and accompanying text.
192 See Greenfield, supra note 6, at 609 n.100.
One commentator has suggested that even members of the general public experience a ‘condition of dependence.’ This view asserts that the government has created a condition of individual dependency on its services and resources over time. ... As gradual dependence strips people of self-help remedies, the opportunity for abuse becomes greater because harm may be perpetuated on a systematic basis.
Id.
193 See supra note 157 and accompanying text.
194 507 F.2d 554 (7th Cir. 1974).
195 See id. at 558.
196 Id. at 557.
197 See supra notes 51-53 and accompanying text.
198 See supra Part II.B.
199 See supra notes 119-24 and accompanying text.
200 Walton v. Alexander, 44 F.3d 1297, 1306-07 (5th Cir. 1995).
201 Ryan, supra note 6, at 307.
202 See 489 U.S. 189, 203-12 (1989) (Brennan, J., dissenting).
203 Id. at 207 (citing majority opinion, 489 U.S. at 200).
204 Id. at 207.
205 See id. at 212 (Blackmun, J., dissenting) (stating that the “sharp and rigid line between ac tion and inaction. . . . has no place" in fourteenth amendment jurisprudence); see also Bjorklund, supra note 6, at 811. “If the state puts a man in a position of danger from private persons and fails to protect him it will not be heard to say that its role was merely passive, it is as much an active tortfeasor as if it had thrown him into a snake pit.” Id. at 811 (quoting Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982)).
206 See supra notes 181-98 and accompanying text.
207 DeShaney, 489 U.S. at 204 (Brennan, J., dissenting) (quoting majority opinion, 489 U.S. at 197 (citation omitted)).
208 See generally Bjorklund, supra note 6, at 805 (discussing the advantages and disadvantages of the formalistic approach to interpreting the Constitution).
209 Weidert, Diane M., Constitutional Rights of the Involuntarily Committed Mentally Retarded After Youngberg v. Romeo, 14 St. Mary’s L.J. 1113, 1136 (1983)Google Scholar; see also Heufner, supra note 92, at 1944-45; Oren, supra note 92, at 155; Greenfield, supra note 6, at 600.
210 See Blum, supra note 83, at 471-78 (discussing in detail the level of culpability required for liability for substantive due process claims for failure to protect).
211 See id. at 471.
212 See Greenfield, supra note 6, at 600.
213 See Bjorklund, supra note 6, at 817; Blum, supra note 83, at 479.
214 DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 211-12 (1989) (Brennan, J., dissenting) (quoting majority opinion, 489 U.S. at 196 (citations omitted)).
215 The remedies available to plaintiffs like Joshua DeShaney and Kathleen Kennedy are lim ited by the doctrine of sovereign immunity, which in some cases bars claims against state and federal government actors. See Mushlin, supra note 167, at 222. For a discussion of the doctrine of sover eign immunity in the context of claims brought against the state by abused foster children, see id. at 245-16.
216 DeShaney, 489 U.S. at 213 (Blackmun, J., dissenting).
217 Association for Retarded Citizens of North Dakota v. Olson, 561 F. Supp. 473, 485 (D.N.D. 1982).
218 Ryan, supra note 6, at 303.
219 See Bjorklund, supra note 6, at 796-97.
Judging whether a duty exists requires a balancing of several factors: the extent of state commitment to offering protective services to a person or class of persons, whether the state is the sole provider of protection, whether the plaintiff relied on the state for protection, whether the state encouraged the actions of a third party [in causing the harm], and whether the state had knowledge of a special danger to a specific individual.
Id. (citations omitted).