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Back to Archives | Back to July 2004 Contents 

Chief's Counsel

No Duty to Protect: Two Exceptions

By L. Cary Unkelbach, Assistant County Attorney Representing the Arapahoe County Sheriff's Office, Centennial, Colorado


Law enforcement generally does not have a federal constitutional duty to protect one private person from another. For example, if a drunk driver injures a pedestrian or a drug dealer beats up an informant, agencies and their officers usually would not be liable for those injuries because there was no duty to protect.

Nonetheless, agencies need to be aware of two exceptions, referred to as the special-relationship and the state-created danger theories, which, if pled and proven, may establish a constitutional duty to protect by police. While plaintiffs who are harmed by third parties often raise both theories when they sue police, the state-created danger exception appears to be litigated more frequently than the special relationship exception, which often is more easily analyzed and defined.

Since its 1989 holding that a duty to protect generally does not exist, the U.S. Supreme Court has not directly spoken on the two exception theories that have since evolved.1 Instead, many federal courts have analyzed, defined and applied these exceptions to a variety of fact patterns. Not all of these lower court decisions are consistent with one another. Agencies, in reviewing their policies, should be aware of the approaches taken by the federal courts in their circuit. This article gives a brief overview of the different judicial approaches to a federal due process claim but does not address whether a failure to protect action could be brought under state law.

Special Relationship
The Due Process Clause of the Fourteenth Amendment forbids the government to deprive individuals of life, liberty, or property without "due process of law."2 In 1989 the U.S. Supreme Court stated, "Nothing 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."3 Generally, the Due Process Clause does not provide an affirmative right to government 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."4

Those pronouncements came in a case where the Court held that there was no substantive due process violation by caseworkers when a child, formerly in department of social services custody, was returned to and later beaten by his father. Caseworkers had received complaints about the father and may have known that the child was in danger. In analyzing the facts, the Court noted that there was no special relationship between Social Services and the child, as the latter was not in its custody. The Court further noted that the state had not created the danger or done anything to place the child in more danger.5 The harm to the child was inflicted not by the state but by the child's father. "The most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them."6

When considering whether law enforcement has a duty to protect, first ask if a special relationship exists. If a suspect is taken into custody by law enforcement, a duty to protect -be it at the scene, during transport, or at the jail-exists.7 The majority of courts require a person to be in physical custody of police before that person has a special relationship with police. However, the Sixth Circuit held that police had a duty to protect a woman where she was effectively in custody when she was threatened with arrest and placed involuntarily in her boyfriend's car.8 The Ninth Circuit held that the government created a special relationship with a noncitizen by paroling him into federal custody as a government witness.9 One federal district court has held a special relationship between the state and a confidential informant existed, and thus there was a duty to protect.10

Courts have rejected the existence of a special relationship in the following situations: between a county and an ex-wife when the sheriff failed to serve her ex-husband with an order of protection;11 between police and a girlfriend when police made a promise to her that her boyfriend would be kept in jail overnight;12 and between a man and police, who went to his home to place him on a mental health hold and then waited downstairs while the man (who was not in the officer's physical custody) went upstairs to get "something" and jumped out a window, thereby killing himself.13

State-Created Danger
Even if there is no special relationship between a person and police, a duty to protect may still exist if the person has been harmed by a third party and can prove the state-created danger theory. This theory has been litigated in a variety of contexts, including those involving motorists and passengers, government and citizen undercovers, rescues by third parties and prevention of rescues, failure to arrest, and failure to serve orders.

Most circuit courts analyze the issue of whether the state-created danger theory is applicable by examining if officers left the individual in a situation that was more dangerous than the one in which they found him, by creating a previously nonexisting danger or increasing the danger. For example, an intoxicated bar patron, who was ejected by police late at night into subfreezing temperatures wearing only jeans and a T-shirt, and was prevented from returning to the bar or driving his truck, made a failure-to-protect claim.14 As the Sixth Circuit said, "The question is not whether the victim was safe during the state action, but whether he was safer before the state action than he was after it."15

At least three circuits have set forth specific tests to determine if a state-created danger exception exists. The Third Circuit requires the plaintiff to show that (1) the harm ultimately caused was foreseeable and fairly direct, (2) the state actor willfully disregarded plaintiff's safety, (3) there existed some relationship between the state and the plaintiff, and (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur.16

The Sixth Circuit requires the plaintiff to show that (1) the state acted affirmatively to create or increase the risk that plaintiff would be harmed by a third party, (2) the state's actions placed the plaintiff, not the general public, at risk, and (3) the state knew or should have known that its actions specifically endangered the plaintiff.17

The Tenth Circuit's test requires a plaintiff to demonstrate that (1) the state actor created the danger or increased plaintiff's vulnerability to the danger in some way, (2) plaintiff was a member of a limited and specifically definable group, (3) defendant's conduct put plaintiff at substantial risk of serious, immediate, and proximate harm, (4) the risk was obvious or known, (5) defendant acted recklessly in conscious disregard of that risk, and (6) such conduct, when viewed in total, shocks the conscience.18

Drunk Drivers and Stranded Persons: Several circuits have considered whether a duty to protect exists in cases involving drunk drivers or stranded persons. For instance, the Seventh Circuit held that a due process claim was stated where police arrested a sober driver but then left the passenger, whom they knew to be drunk, with the car and keys, and the drunk passenger drove the car and two hours later caused a head-on collision.19

Meanwhile, the Eighth Circuit held that a duty to protect did not exist where the designated driver was arrested on a warrant and allowed to drive his car to the police station. His passengers, who were drunk, remained unattended in the car outside the police station for about 30 minutes, drove off, and were involved in a fatal crash.20 The Court reasoned that a claim had not been stated, as it was not reasonable to find that the arresting officer "knew or should have known that the two passengers were drunk and unfit to drive."21

The Third Circuit found that the state created danger when police, after stopping two pedestrians, left the intoxicated wife to walk a third of a block to her home alone in the dark on a cold night after her husband had already left.22 Sending her home "unescorted in a visibly intoxicated state in cold weather," made her "more vulnerable" to harm, which, the Court held, was foreseeable.23

No state-created danger exception existed when a motorcyclist and a passenger were injured while going through an unruly crowd, as there was no showing that the individual officers "used their authority to commit affirmative acts that rendered the plaintiffs vulnerable to a harm that would not otherwise have occurred."24 Failure to investigate a possible DUI motorist, who minutes later caused a fatal collision, did not support a claim25; and neither did failure to arrest a motorist who was stopped for speeding but passed roadside sobriety tests as the officer left the driver in the same position she was in had she not been stopped.26

Undercover Officers and Operatives: Whether a duty to protect is owed to undercover officers and citizens is another subject that has been considered by several courts. The Sixth Circuit found a due process claim was stated where the city released undercover police officers' home addresses and other personal information to defense counsel, as by releasing the information the city created a very real threat to the officers and their families.27

The District of Columbia Circuit found, after analyzing extensive case law, that it was not clearly established whether there was a duty to protect an undercover operative who was beaten to death by a third party in 1997.28

The Seventh Circuit rejected a due process claim against a police officer who was the control officer for a paid informant who was shot in the head by his cousin.29 In contrast, the Seventh Circuit held that police were liable when a deputy chief created danger to an informant who requested that his taped telephone call to police about an alleged theft not be released to the suspect, who killed him after the tape was released. By releasing the tape, the deputy chief created a danger to the informant who otherwise would not have faced the danger.30

Rescues by Third Parties, and Prevention of Rescues: Federal courts appear to be split on whether law enforcement interference with private rescue attempts falls within the state-created danger exception to the duty to protect. The Seventh Circuit has held that recklessly interfering with private rescue attempts without providing alternatives was a due process violation.31

The District of Columbia Circuit found there was no constitutional duty to rescue, and private rescues could be prevented without incurring liability, especially where police were entitled, if not obligated, to prevent the would-be rescuer from endangering her life.32 Where the police returned a child to his abductor and prevented others from helping a child or investigating further, a substantive due process claim was stated.33

Returning a person with mental disabilities to her rapist when the former did not advise police of the rape and stated she wanted to go home with him did not state a claim.34 Police incurred danger to an man by canceling a 911 call and locking him in an empty house when he needed medical care.35 A due process violation occurred when sheriff's commanders cut off, for more than three hours, all avenues of rescue attempts by rescue personnel and police officers to try to save the life of a Columbine High School teacher known to be critically injured.36

Failure to Serve Orders: The Sixth Circuit did not find a substantive due process claim stated where the police failed to serve an ex parte order on an ex-husband37 or failed to investigate a missing persons report.38 The Tenth Circuit recently held that the state-created danger exception to a substantive due process duty to protect claim did not state a claim for failure to enforce a restraining order against a father who killed his children. However, the court allowed a procedural due process claim to proceed based on a property interest it said was created by state law.39

Failure to Arrest: Failure to arrest a parolee who walked into a police station to surrender but left before a warrant was found and who then raped and killed did not state a substantive due process claim.40 That court found that when he was released, he posed no more of a danger than he did before he came to the police station.41 The Seventh Circuit held that police failure to act on a phone call from a workplace reporting a threat of violence to employees did not create a claim.42 That court found that there was no duty to the city residents "to provide a police department whose policy is to investigate threats of violence, even credible ones made by private persons and reported by private persons."43

Although police generally have no constitutional duty to protect private persons from third parties, there may be such a duty if a special relationship exists or if the state increased or created the danger to the harmed person. Federal courts do not always apply these exceptions in a consistent manner. Agencies should evaluate their own circuit's application of the law to specific facts before deciding when a duty to protect may arise in their jurisdiction. Further, local counsel should be consulted to assess whether state tort law allows a failure to protect lawsuit based on a negligence theory.


1 DeShaney v. Winnebago County Dept. of Social Services, 109 S. Ct. 998 (1989).
2 Id. at 1003.
3 Id.
4 Id.
5 Id. at 1005-1006.
6 Id. at 1006.
7 See Id. at 1005-1006.
8 Stemler v. Florence, 126 F. 3d 856, 868 (6th Cir. 1997), cert. denied, 118 S. Ct. 1796 (1998).
9 Wang v. Reno, 81 F. 3d 808, 818 (9th Cir. 1996).
10 G-69 v. Degnan, 745 F. Supp. 254, 265 (D. N.J. 1990).
11 Jones v. Union County, 296 F. 3d 417, 428 (6th Cir. 2002).
12 Pinder v. Johnson, 54 F. 3d 1169, 1175 (4th Cir. 1995), cert. denied, 116 S. Ct. 530 (1995).
13 Henderson v. City of Philadelphia, 1999 WL 482305 (E.D. Pa. 1999), cert. denied, 121 S. Ct. 574 (2000).
14 Munger v. City of Glasgow Police Dept., 227 F. 3d 1082, 1086-1087 (9th Cir. 2000).
15 Cartwright v. City of Marine City, 336 F. 3d 487, 493 (6th Cir. 2003).
16 Schieber v. City of Philadelphia, 320 F. 3d 409, 417 (3rd Cir. 2003).
17 Cartwright v. City of Marine City, 336 F. 3d at 493.
18 Christiansen v. City of Tulsa, 332 F. 3d 1270, 1281 (10th Cir. 2003).
19 Reed, et al. v. Gardner, et al., 986 F. 2d 1122, 1127 (7th Cir. 1993), cert. denied, 114 S. Ct. 389 (1993).
20 Gregory v. City of Rogers, 974 F. 2d 1006, 1008 (8th Cir. 1992), cert. denied, 113 S.Ct. 1265 (1993).
21 Id. at 1010-1011.
22 Kneipp v. Tedder, 95 F. 3d 1199, 1211 (3rd Cir. 1996).
23 Id. at 1208-1209.
24 LeMay v. Town of Broomfield, 62 F. Supp. 2d 583, 589 (D. Ct. 1999).
25 Saenz v. Heldenfels Bros., Inc., 183 F. 3d 389, 391-392 (5th Cir. 1999).
26 Wyatt v. Krzysiak, 82 F. Supp. 2d 250, 259-260 (D. Del. 1999).
27 Kallstrom v. City of Columbus, 136 F. 3d 1055, 1063 (6th Cir. 1998).
28 Butera v. District of Columbia, et al., 235 F. 3d 637, 652 (D.C. Cir. 2001).
29 Dykema v. Skoumal, 261 F. 3d 701, 707 (7th Cir. 2001).
30 Monfils v. Taylor, 165 F. 3d 511, 518 (7th Cir. 1999), cert. denied, 120 S. Ct. 43 (1999).
31 Ross v. United States, 910 F. 2d 1422, 1433 (7th Cir. 1990).
32 Andrews v. Wilkins, 934 F. 2d 1267, 1271 (U.S. App. D.C. 1991).
33 Estate of Sinthasomphone v. City of Milwaukee, et al., 785 F.Supp. 1343, 1349 (E.D. Wi. 1992).
34 Bukowski v. City of Akron, 326 F. 3d 702, 712 (6th Cir. 2003).
35 Penilla v. City of Huntington Park, 115 F. 3d 707, 710 (9th Cir. 1997), cert. denied, 118 S. Ct. 2059 (1998).
36 Sanders v. Bd. of County Comm'rs of Jefferson County, 192 F. Supp. 2d 1094, 1117 (D. Colo. 2001).
37 Jones v. Union County, 296 F. 3d at 430-431.
38 Gazette v. City of Pontiac, 41 F. 3d 1061, 1065-1066 (6th Cir. 1994).
39 Gonzales v. City of Castle Rock, 2004 WL 950940, (10th Cir. 2004).
40 Leidy v. Borough of Glenolden, et al., 277 F. Supp. 2d 547, 561 (E.D. Pa. 2003).
41 Id.
42 Hernandez v. City of Goshen, 324 F. 3d 535, 538 (7th Cir. 2003).
43 Id.


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From The Police Chief, vol. 71, no. 7, July 2004. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.








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