The City of Charlottesville, Police Chief Al Thomas, and State Police Superintendent Steven Flaherty have been sued for injuries allegedly suffered by Robert Sanchez Turner when he was hit by water bottles thrown by alt-right demonstrators on August 12, 2017. He has sued for “all permissible damages,” plus punitive damages and attorneys’ fees.
His claim is that someone — either the State Police by Superintendent Flaherty or the Charlottesville Police Department by Chief Thomas — gave a “stand-down” order to the police officers present to not intervene in the events of August 12, as a result of which Mr. Turner got hit by water bottles, some of which contained urine, thrown by the alt-right demonstrators.
Let’s put aside the factual questions about his claim; his legal theory flies in the face of controlling precedent from the United States Supreme Court and the Fourth Circuit Court of Appeals in Richmond.
To understand the controlling law, let’s look at three cases.
DeShaney v. Winnebago County DSS — Supreme Court
The lead case is DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), a horrible case where 4-year-old Joshua DeShaney was beaten by his father so severely that he was left severely brain-damaged, profoundly retarded and permanently institutionalized. Joshua’s mother brought suit against the Department of Social Services, saying that DSS knew that Joshua’s father was abusing him physically, yet they did nothing to protect him.
The complaint alleged that respondents had deprived Joshua of his liberty without due process of law, in violation of his rights under the Fourteenth Amendment, by failing to intervene to protect him against a risk of violence at his father’s hands of which they knew or should have known.
489 U.S. at 193. The lower courts had ruled against Joshua’s mother, and the question for the Supreme Court was whether the County had any liability under the Due Process Clause.
The Supreme Court has long held that citizens do not have a due process right to have governmental help in securing constitutionally protected life, liberty or property interests. We have a right to not have the government interfere with our exercise of a constitutionally protected life, liberty or property interest, but …
… the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual. See, e.g., Harris v. McRae, 448 U.S. 297, 317–318, 100 S.Ct. 2671, 2688–2689, 65 L.Ed.2d 784 (1980) (no obligation to fund abortions or other medical services) (discussing Due Process Clause of Fifth Amendment); Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 874, 31 L.Ed.2d 36 (1972) (no obligation to provide adequate housing) (discussing Due Process Clause of Fourteenth Amendment); see also Youngberg v. Romeo, supra, 457 U.S., at 317, 102 S.Ct., at 2458 (“As a general matter, a State is under no constitutional duty to provide substantive services for those within its border”). As we said in Harris v. McRae: “Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference …, it does not confer an entitlement to such [governmental aid] as may be necessary to realize all the advantages of that freedom.” 448 U.S., at 317–318, 100 S.Ct., at 2688–2689 (emphasis added). If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them. As a general matter, then, we conclude that a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.
489 U.S. at 196-197 (emphasis added).
Pinder v. Johnson — Fourth Circuit:
In 1995, the Fourth Circuit Court of Appeals decided Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995) (en banc), which built on DeShaney. Don Pittman, the ex-boyfriend of Carol Pinder, had broken into her home and assaulted her, and threatened to return and kill her and her children. Officer Donald Johnson of the Cambridge, Maryland, police came to arrest Pittman, and he assured Carol Pinder that Pittman would be locked up until the next morning. Based on that promise, Pinder went to her night shift job, leaving the children home, asleep. In fact, Officer Johnson only charged Pittman with misdemeanors, and the magistrate let him out on his own recognizance, with a warning to stay away from Pinder’s home. Instead Pittman returned to the home and set fire to it. Pinder’s three children died of smoke inhalation. Pinder sued Officer Johnson and the City of Cambridge, alleging that they had failed in their affirmative duty to protect her and her children, and that negligence led to the death of the children.
The Fourth Circuit rejected the claim, finding that only a “special relationship” such as would come if the plaintiff was in confinement — incarceration or institutionalization — would trigger an “affirmative duty” that would give rise to liability.
This Court has consistently read DeShaney to require a custodial context before any affirmative duty can arise under the Due Process Clause. See, e.g., Rowland [v. Perry, 41 F.3d 167, 174–75 (4th Cir. 1994)] (noting that when the state has not restricted one’s ability to care for oneself, the rationale for an affirmative duty falls away); Piechowicz v. United States, 885 F.2d 1207, 1215 (4th Cir.1989) (holding that “substantive due process protects the liberty interests only of persons affirmatively restrained by the United States from acting on their own behalf”) (emphasis added).
54 F.3d at 1175. Pinder argued that the promise from Officer Johnson that Pittman would be locked up created a “special relationship,” because she relied on that promise and therefore didn’t stay home to protect her children or move them out of the house. The Fourth Circuit was unmoved:
It cannot be that the state “commits an affirmative act” or “creates a danger” every time it does anything that makes injury at the hands of a third party more likely. If so, the state would be liable for every crime committed by the prisoners it released. See Martinez v. California, 444 U.S. 277, 284–85, 100 S.Ct. 553, 558–59, 62 L.Ed.2d 481 (1980) (no state action when released prisoner causes injury). No amount of semantics can disguise the fact that the real “affirmative act” here was committed by Pittman, not by Officer Johnson. As was true in DeShaney, the state did not “create” the danger, it simply failed to provide adequate protection from it. In both cases, “[t]he most that can be said of the state functionaries … is that they stood by and did nothing when suspicious circumstances dictated a more active role for them.” [DeShaney, 489 U.S.] at 203, 109 S.Ct. at 1007. Thus, like DeShaney, Pinder’s case is purely an omission claim.
54 F.3d at 1176 (emphasis added).
Doe v. Rosa — Fourth Circuit
The Complaint filed in United States District Court on Friday contains a quotation from the Fourth Circuit case of Doe v. Rosa, 795 F.3d 429, 440-41 (4th Cir. 2015). This case involved a claim that a camper at the Citadel Summer Camp (The Citadel is a South Carolina state-owned college) had been molested by a camp counselor named ReVille in 2005, 2006, and 2007 (both in his job as a counselor and when providing private baby-sitting services to the family during the school year), that the college administration learned of other accusations against ReVille in April, 2007, and that because The Citadel did not promptly fire ReVille, he continued to molest the child until he was finally fired in August, 2007.
The Complaint quotes some of the language from Doe v. Rosa, in effort to make it seem that their theory has some legal merit under existing law. As they made clear in their press conferences, the lawyers bringing this case are going to argue that a supposed “stand-down” order — supposedly a specific order to do nothing — was the “affirmative act” that would give liability. Doe v. Rosa does not help. The Fourth Circuit in Doe v. Rosa quotes its opinion in Pinder —
No amount of semantics can disguise the fact that the real “affirmative act” here was committed by Pittman, not by Officer Johnson.
The Court held that The Citadel had not done anything to create or increase the risk of abuse — the abuse had been going on for years. In DeShaney, the Department of Social Services had taken custody of Joshua and had then returned him to his father’s custody before the assault that left Joshua so badly injured, a fact that the Supreme Court held “does not alter the analysis.” Applying that logic,
The Does were thus placed in “no worse position than that in which [they] would have been had [Rosa] not acted at all.” DeShaney, 489 U.S. at 201, 109 S.Ct. 998. … Rosa did not make the Does’ danger any worse, and he had no constitutional duty to save them from ReVille’s existing abuse.
795 F.3d at 440 (emphasis in original).
The only appellate decision that I have found that finds liability against a police officer for failing to prevent harm is the unreported case of Robinson v. Lioi, 536 Fed.Appx. 340 (4th Cir. 2013). In that case, a woman was stabbed and killed after Lioi, a police officer, actively conspired with her husband to help him evade an arrest warrant for domestic violence, giving him the opportunity to kill his wife. The Fourth Circuit in Rosa noted that
Unlike here or in DeShaney, the police officer in Lioi put the victim in a far “worse position” by acting to thwart the arrest warrant.
795 F.3d at 440. An unreported opinion like Lioi is not authority that lower courts are required to follow, its facts are much different from this situation, and the Court in that case applied the same principles of law as in DeShaney and Pinder. I have not found any other appellate court that has found liability against a police officer or police chief or city or state for failing to prevent violence.
In short, under existing caselaw, this claim against all three defendants should be thrown out on a Motion to Dismiss, and the public trial that the Plaintiff’s attorney is calling for will probably not happen.
Would there be some pressure to decide this issue differently in this case? I would think it highly unlikely; if permanent brain damage (DeShaney), three dead children (Pinder) and child sexual abuse (Rosa) were not enough, getting hit by water bottles probably won’t be enough.
