DeShaney by First v. Winnebago County Dept. of Social Services, 86-2188

• Citation: 812 F.2d 298
• Decision Date: 21 April 1987
• Docket Number: No. 86-2188,86-2188
• Parties: Joshua DeSHANEY, a minor, by his guardian ad litem, Curry FIRST, Esq.; and Melody DeShaney, Plaintiffs-Appellants, v. WINNEBAGO COUNTY DEPARTMENT OF SOCIAL SERVICES, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 298

812 F.2d 298

55 USLW 2458

Joshua DeSHANEY, a minor, by his guardian ad litem, Curry FIRST, Esq.; and Melody DeShaney, Plaintiffs-Appellants, v. WINNEBAGO COUNTY DEPARTMENT OF SOCIAL SERVICES, et al Defendants-Appellees.

No. 86-2188.

United States Court of Appeals Seventh Circuit.

Argued Jan. 13, 1987.

Decided Feb. 12, 1987.

Rehearing and Rehearing En Banc Denied April 21, 1987.

Donald J. Sullivan, Cheyenne, Wyo., Curry First, Perry, First, Lerner & Quindel, Milwaukee, Wis., for plaintiffs-appellants.

Mark J. Mingo, Simarski & Stack, Ltd., Milwaukee, Wis., for defendants-appellees.

Before POSNER and COFFEY, Circuit Judges, and GRANT, Senior District Judge. ^*

POSNER, Circuit Judge.

This appeal requires us to decide whether a reckless failure by Wisconsin welfare authorities to protect a child from a parent's physical abuse deprives the child of liberty or property within the meaning of the Fourteenth Amendment.

Since the case was dismissed on summary judgment, we state the facts as favorably to the plaintiffs as the record will allow. The principal plaintiff, Joshua DeShaney, was born in 1979, the son of Melody and Randy DeShaney (Melody is also a plaintiff). Joshua was born in Wyoming, where the DeShaneys then lived and where his mother still lives. In 1980 a court in Wyoming granted the DeShaneys a divorce. The court awarded custody of Joshua to his father. Shortly afterward, Randy moved to Wisconsin, bringing Joshua with him. There he married (and shortly afterward divorced) a woman whose lawyer told the police in 1982 that Randy had "hit the boy, causing marks and is a prime case for child abuse."

In January 1983, Randy DeShaney's girlfriend, Marie, brought Joshua to a hospital. He was covered with bruises and abrasions--from an attack by another child, she said, but the emergency room personnel suspected child abuse. They notified the Winnebago County Department of Social Services immediately, and by the end of the day that Joshua had been admitted to the hospital the Department had obtained an order from a Wisconsin juvenile court placing him temporarily in the hospital's custody. See Wis.Stat. Secs. 48.13(3), 48.19, 48.207. Three days later an ad hoc "child protective team," consisting of a pediatrician, a psychologist, a police detective, a lawyer for the county, a caseworker for the Department named Ann Kemmeter, her superior, and others, discussed the situation. On the basis of this discussion the county's lawyer decided that there was insufficient evidence of child abuse to retain Joshua in the custody of the court (authorized by Wisconsin law if "probable cause exists to believe that if the child is not held he or she will ... be subject to injury by others," Wis.Stat. Sec. 48.205(1)(a); see also Secs. 48.19, 48.21). So Joshua was returned to Randy DeShaney's custody. The team recommended, however, that Randy be required to enroll Joshua in the Headstart program, receive counseling from the Department, and tell Marie to move out of Randy's house--for Randy had suggested that she might be abusing Joshua. This recommendation was embodied in a written agreement between Randy and the Department, a form of informal disposition of juvenile cases that Wisconsin law authorizes. See Wis.Stat. Sec. 48.245.

Three weeks later the court closed the child-protection case that the Department had brought. A month after this Ann Kemmeter received word from the hospital that Joshua had again been treated for suspicious injuries. But after talking to the hospital's social worker she concluded that there was no evidence of child abuse.

Ann Kemmeter visited the DeShaney household in May. She noticed a bump on Joshua's forehead. Randy and Marie said he had gotten it falling off a tricycle. Kemmeter visited the household again in July, and noticed that Marie still hadn't moved out and that Joshua still hadn't been enrolled in Headstart. In September she visited again and asked to see Joshua but was told by someone that Randy and Marie had taken Joshua to the emergency room with a scratched cornea. In October she visited again and noticed another bump on Joshua's head. On her next visit, which was in November, she noticed that Joshua had a scrape on his chin; it looked to her like a cigarette burn. Later that month Joshua was treated at the emergency room for a cut forehead, bloody nose, swollen ear, and bruises on both shoulders. Emergency room personnel notified the Department of Social Services that they believed that he was a victim of child abuse, but there was no reaction from the Department.

Kemmeter next visited the DeShaney household in January (1984), but was told she couldn't see Joshua because he was in bed with the flu. She returned on March 7 and was told that several days earlier Joshua had fainted in the bathroom for no apparent reason. She did not ask to see him on this occasion--and has not been able to give a reason why not. The next day Randy DeShaney beat Joshua so severely that he critically injured Joshua's brain. The neurosurgeon who treated Joshua found evidence of previous traumatic injury to the head, and Joshua's body was covered with bruises and lesions of different vintages. Joshua's mother was summoned from Wyoming. When she arrived Kemmeter told her, "I just knew the phone would ring some day and Joshua would be dead." He was not dead, but half his brain had been destroyed. He is confined to an institution for the profoundly retarded, and will remain institutionalized for the rest of his life. Randy DeShaney was convicted of child abuse and given a sentence of two to four years in prison.

This suit, brought by Joshua and his mother, charges Winnebago County, its Department of Social Services, Ann Kemmeter, and her supervisor with having deprived Joshua of his liberty without due process of law, in violation of section 1 of the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983. Section 1 imposes liability on anyone who, acting under color of state law, "subjects, or causes to be subjected," a person to "the deprivation of" his federal rights. The complaint contains a "pendent party" claim against Randy DeShaney, see Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1359-61 (7th Cir.1985) (separate opinions), but the district court relinquished jurisdiction of this claim when it dismissed the federal claim on the defendants' motion for summary judgment, see United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). The court held that the failure of a state agency to render protective services to persons within its jurisdiction does not violate the due process clause.

There are two possible theories on which the defendants (excluding Randy DeShaney, who is not a defendant in the section 1983 count and who was not acting under color of state law when he abused his son) might be thought to have violated Joshua DeShaney's Fourteenth Amendment rights. First, the defendants might be thought to have deprived him of a right--a form of liberty or property--to be protected by the Department of Social Services from the brutalities perpetrated by his father. Second, they might be thought to have deprived him of his right to bodily integrity (again viewed as a form of liberty or property within the meaning of the due process clause) by failing to protect him from his father.

The first theory is foreclosed by the rule, well established in this circuit, that the state's failure to protect people from private violence, or other mishaps not attributable to the conduct of its employees, is not a deprivation of constitutionally protected property or liberty. See, e.g., Walker v. Rowe, 791 F.2d 507, 510 (7th Cir.1986); Ellsworth v. City of Racine, 774 F.2d 182, 185 (7th Cir.1985); Jackson v. Byrne, 738 F.2d 1443, 1446 (7th Cir.1984); Beard v. O'Neal, 728 F.2d 894, 898-900 (7th Cir.1984); Jackson v. City of Joliet, 715 F.2d 1200, 1203-04 (7th Cir.1983); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982). The First, Eleventh, and District of Columbia Circuits have adopted our view, see Estate of Gilmore v. Buckley, 787 F.2d 714, 720-23 (1st Cir.1986); Bradberry v. Pinellas County, 789 F.2d 1513 (11th Cir.1986); Washington v. District of Columbia, 802 F.2d 1478, 1481-82 (D.C.Cir.1986), and there is also support for it in the Sixth Circuit, see Janan v. Trammell, 785 F.2d 557 (6th Cir.1986). These cases are based on the principle that the Constitution is a charter of negative rather than positive liberties; and while there are exceptions to this as to virtually all legal generalizations--exceptions well discussed in Currie, Positive and Negative Constitutional Rights, 53 U.Chi.L.Rev. 864 (1986)--none of them is applicable here. The state does not have a duty enforceable by the federal courts to maintain a police force or a fire department, or to protect children from their parents. The men who framed the original Constitution and the Fourteenth Amendment were worried about government's oppressing the citizenry rather than about its failing to provide adequate social services. For such failures, political remedies (along with such legal remedies as states might see fit to provide in their own courts) were assumed to be adequate. The state may not invidiously withdraw its protection from a disfavored minority without violating the equal protection clause in its most fundamental sense, Bohen v. City of East Chicago, 799 F.2d 1180, 1190 (7th Cir.1986) (concurring opinion), but that is not suggested in this case.

So we do not think that the plaintiffs can complain that Joshua was deprived of a federal constitutional right to effective protection from his father, but maybe he can complain that the state was complicit in the beatings. The terrible injuries that Joshua sustained, which have essentially immobilized him for life, have deprived him of his liberty within the meaning that the courts have given this word in the due process clauses....