endobj Today's opinion construes the Due Process Clause to permit a State to displace private sources of protection and then, at the critical moment, to shrug its shoulders and turn away from the harm that it has promised to try to prevent. Petitioner's father finally beat him so severely that he suffered permanent brain damage, and was rendered profoundly retarded. <>stream

Clause, to provide adequate protection, see Estelle v. Gamble, 429 U. S. 97; Youngberg v. Romeo, 457 U. S. 307, 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 limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty. endobj Id. Wisconsin has established a child-welfare system specifically designed to help children like Joshua. Moreover, to the Court, the only fact that seems to count as an "affirmative act of restraining the individual's freedom to act on his own behalf" is direct physical control. at 457 U. S. 315-316; see also Revere v. Massachusetts General Hospital, 463 U. S. 239, 463 U. S. 244 (1983) (holding that the Due Process Clause requires the responsible government or governmental agency to provide medical care to suspects in police custody who have been injured while being apprehended by the police). In a constitutional setting that distinguishes sharply between action and inaction, one's characterization of the misconduct alleged under § 1983 may effectively decide the case. 2 . There he entered into a second marriage, which also ended in divorce. See Estelle v. Gamble, supra, at 429 U. S. 103-104; Youngberg v. Romeo, supra, at 457 U. S. 315-316. at 301. "The most that can be said of the state functionaries in this case," the Court today concludes, "is that they stood by and did nothing when suspicious circumstances dictated a more active role for them." Petitioner is a child who was subjected to a series of beatings by his father, with whom he lived. It simply belies reality, therefore, to contend that the State "stood by and did nothing" with respect to Joshua.

Under these circumstances, the State had no constitutional duty to protect Joshua. In these circumstances, a private citizen, or even a person working in a government agency other than DSS, would doubtless feel that her job was done as soon as she had reported her suspicions of child abuse to DSS. I do not mean to suggest that "the State's affirmative act of restraining the individual's freedom to act on his own behalf," ante at 489 U. S. 200, was irrelevant in Youngberg; rather, I emphasize that this conduct would have led to no injury, and consequently no cause of action under § 1983, unless the State then had failed to take steps to protect Romeo from himself and from others. See Daniels v. Williams, 474 U.S. at 474 U. S. 335-336; Parratt v. Taylor, 451 U.S. at 451 U. S. 544; Martinez v. California, 444 U. S. 277, 444 U. S. 285 (1980); Baker v. McCollan, 443 U. S. 137, 443 U. S. 146 (1979); Paul v. Davis, 424 U. S. 693, 424 U. S. 701 (1976).

. The specific facts before us bear out this view of Wisconsin's system of protecting children. Because of the posture of this case, we do not know why respondents did not take steps to protect Joshua; the Court, however, tells us that their reason is irrelevant, so long as their inaction was not the product of invidious discrimination. .

Of course, the protections of the Due Process Clause, both substantive and procedural, may be triggered when the State, by the affirmative acts of its agents, subjects an involuntarily confined individual to deprivations of liberty which are not among those generally authorized by his confinement.
<>/Border[0 0 0]/Contents()/Rect[72.0 612.5547 124.3037 625.4453]/StructParent 2/Subtype/Link/Type/Annot>> Ingraham v. Wright, 430 U. S. 651, 430 U. S. 671-672, n. 40 (1977); see also Revere v. Massachusetts General Hospital, 463 U. S. 239, 463 U. S. 244 (1983); Bell v. Wolfish, 441 U. S. 520, 441 U. S. 535, n. 16 (1979). Each time someone voiced a suspicion that Joshua was being abused, that information was relayed to the Department for investigation and possible action. 88-576, and the importance of the issue to the administration of state and local governments, we granted certiorari. See Estate of Bailey by Oare v. County of York, 768 F.2d 503, 510-511 (CA3 1985); Jensen v. Conrad, 747 F.2d 185, 190-194, and n. 11 (CA4 1984) (dicta), cert. . But no such argument has been made here. The claim is one invoking the substantive rather than the procedural component of the Due Process Clause; petitioners do not claim that the State denied Joshua protection without according him appropriate procedural safeguards, see Morrissey v. Brewer, 408 U.S. 471, 481 (1972), but that it was categorically obligated to protect him in these circumstances, see Youngberg v. Romeo, 457 U.S. 307, 309 (1982).2. 152-153. DESHANEY, A MINOR, BY HIS GUARDIAN AD LITEM, ET AL. Argued November 2, 1988. Youngberg and Estelle are not alone in sounding this theme. On the caseworker's next two visits to the DeShaney home, she was told that Joshua was too ill to see her. [Footnote 7] The rationale for this principle is simple enough: when the State, by the affirmative exercise of its power, so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs -- e.g., food, clothing, shelter, medical care, and reasonable safety -- it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.

Indeed, I submit that these Clauses were designed, at least in part, to undo the formalistic legal reasoning that infected antebellum jurisprudence, which the late Professor Robert Cover analyzed so effectively in his significant work entitled Justice Accused (1975). Because we conclude that the Due Process Clause did not require the State to protect Joshua from his father, we need not address respondents' alternative argument that the individual state actors lacked the requisite "state of mind" to make out a due process violation. That the State once took temporary custody of Joshua does not alter the analysis, for, when it returned him to his father's custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual's safety by having once offered him shelter. Ante at 489 U. S. 196, quoting Davidson, 474 U.S. at 474 U. S. 348. Petitioner sued respondents claiming that their failure to act deprived him of his liberty in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. A. In so holding, the court specifically rejected the position endorsed by a divided panel of the Third Circuit in Estate of Bailey by Oare v. County of York, 768 F.2d 503, 510-511 (CA3 1985), and by dicta in Jensen v. Conrad, 747 F.2d 185, 190-194 (CA4 1984), cert.

The Estelle-Youngberg analysis simply has no applicability in the present case. I.

Indeed, several Courts of Appeals have held, by analogy to Estelle and Youngberg, that the State may be held liable under the Due Process Clause for failing to protect children in foster homes from mistreatment at the hands of their foster parents. Because, as explained above, the State had no constitutional duty to protect Joshua against his father's violence, its failure to do so -- though calamitous in hindsight -- simply does not constitute a violation of the Due Process Clause. <>/Metadata 278 0 R/Outlines 242 0 R/Pages 275 0 R/StructTreeRoot 247 0 R/Type/Catalog/ViewerPreferences<>>> Having actually undertaken to protect Joshua from this danger — which petitioners concede the State played no part in creating — the State acquired an affirmative "duty," enforceable through the Due Process Clause, to do so in a reasonably competent fashion.

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. The father shortly thereafter moved to Neenah, a city located in Winnebago County, Wisconsin, taking the infant Joshua with him. 489 U. S. 194-197. Id., at 314-325; see id., at 315, 324 (dicta indicating that the State is also obligated to provide such individuals with "adequate food, shelter, clothing, and medical care").

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. When Joshua first appeared at a local hospital with injuries signaling physical abuse, for example, it was DSS that made the decision to take him into temporary custody for the purpose of studying his situation — and it was DSS, acting in conjunction with the corporation counsel, that returned him to his father. This restatement of Youngberg's holding should come as a surprise when one recalls our explicit observation in that case that Romeo did not challenge his commitment to the hospital, but instead, "argue[d] that he ha[d] a constitutionally protected liberty interest in safety, freedom of movement, and training within the institution; and that petitioners infringed these rights by failing to provide constitutionally required conditions of confinement.". Unlike the Court, therefore, I am unable to see in Youngberg a neat and decisive divide between action and inaction.

Moreover, to the Court, the only fact that seems to count as an "affirmative act of restraining the individual's freedom to act on his own behalf" is direct physical control. We express no view on the validity of this analogy, however, as it is not before us in the present case. Thus, in the Court's view, Youngberg can be explained (and dismissed) in the following way: "In the substantive due process analysis, 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.


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