Crime & Federalism

DeShaney is a God-forsaken (I mean that literally) decision that has caused thousands of children to be molested and abused.  These children were unnecessary victims.  Here are two cases from CA8 illustrating my point -- These cases properly applied DeShaney, which shows what an awful principle it articulates.

In S.S. v. McMullen, 225 F.3d 960 (8th Cir. 2000) (en banc), a social worker removed a child from an abusive home.  The father was abusive, and he frequently had a convicted pedophile in his home.  Ultimately, S.S. was beaten and used.  But the court had to deny her relief.

Citing DeShaney, the court denied S.S’s claim against social workers who returned S.S. to her sick and twisted father and his perverted friends.  The state did not increase or create the danger.  Rather, they "merely" returned S.S. to the lion's den.  “[I]f the state acts affirmatively to place someone in a position of danger that he or she would not otherwise have faced, the state actor, depending on his or her state of mind, may have committed a constitutional tort.”  Id. at 962. Thus, “[w]hile recognizing the correctness of that principle as a general matter is indisputable, [ ] it cannot give rise to liability in the present case” because the state did not create the danger.  Rather, the social workers simply returned S.S. to an already dangerous environment.  Thus, no danger creation and no liablity under DeShaney.

In Terry B. v. Gilkey, 229 F.3d 680 (8th Cir. 2000), the court did not find a rights violation when a social worker placed children with an aunt and uncle who subsequently abused the children because “DHS ‘did not increase the danger of significant harm’ [but] merely placed the children back” into a dangerous situation.  (citing S.S., above).  Under DeShaney, social workers need not place the children in a safe home.  Let's call it the Ostrich rule.

State and local officials have hidden behind DeShaney long enough.  They know that they need not do their jobs and protect children because if they fail, they face no consequences.  Thus, although I would be joyful if the Court used Castle Rock as a chance to curtail DeShaney, I know it won't happen.

Basically, a vote for DeShaney is a vote for child molestors and a vote against personal responsibility.  Shouldn't incompetent social workers who cause children to be abused be held to answer?  But I suppose that members of the Court will hide behind abstract principles and the voo-doo-like magesty of state discretion will prevail.