I have a secret to tell you -- The police are not required to protect you. Even if the police watch someone beat you up, you could not sue them. Most people don't know this, and are shocked when I explain it.
The Fourteenth Amendment provides that no person shall be deprived of life, liberty, or property without due process of law. The 14th Amendment, however, is a guarantee of negative liberties -- It only protects one from governmental actions. Thus, the government does not have a duty to prevent deprivations of one's life liberty or property. (DeShaney).
Currently, the circuits have recognized two exceptions to the "no duty" rule. The state has a duty to protect a citizen from private violate where there is a special relationship, and where the state creates or increases the danger the citizen faces.
Special relationship cases arise most frequently where there is involuntary confinement. When a the state places someone in prison or a mental hospital, they take away his ability to defend himself, and therefore must offer some protection. Thus, the state owes a duty to protect someone from prison rape, and to provide a prisoner with medical care.
Danger creation occurs when the state puts the person in harms way. For example, in Wells v. Walker (CA8), the state endangered the decedent by dropping off a released prisoner (whom prison officials knew posed a danger to himself and others) at the store she was working at.
These two categories are too narrow, as a recent First Circuit case illustrates.
In Rivera v. Rhode Island (CA1), a 15-year old - Jennifer Rivera - witnessed a gangland murder. She was too afraid to testify, though, because everyone knew that if crossing this gang meant the death penalty. But the police promised that they would protect her. But for those promises, little Jennifer would have clammed up.
Sadly, the police broke their promises. Jennifer did not have any protection, and she was murdered.
Applying DeShaney, and circuit court decisions interpreting danger creation, a unanimous three-judge panel denied Rivera's claims. Slip op. at *21 ("While the unkept promises may have rendered her more vulnerable to the danger posed by Charles Pona and his associates,
merely rendering a person more vulnerable to risk does not create a constitutional duty to protect.") It's counterintuitive that making some vulnerable does not create danger. But that is generally how the circuits have analyzed affirmative duty cases, and that is why affirmative duty cases should be analyzed differently.
Since section 1983 is to be against the backdrop of tort liability, the courts should provide a simple, workable rule: The state owes a person protection when the state assumes a duty to protect, and where a reasonable person in the citizens position would reasonably rely on the assertion.
Some would argue that this rule would open the floodgates of litigation and lead to crippling money judgments against government employees and municipalities. That criticism is wrong for two reasons.
First, the state would be under a duty only if it assumed one. A plaintiff would be prevented from making will-nilly arguments that some facts showed a duty. Rather, the state would have to unequivocally assume the duty. In Rivera, the police assumed a duty when they promised her protection. Simply put, if a state actor wanted to avoid liability, she would need only not make promises she did not intend to keep.
Second, to state a substantive due process claim, the plaintiff still has to meet the almost insurmountable obstacle of shocking a federal judge's conscience That is, the plaintiff can't win unless the defendant's conduct shocks the conscience of the reviewing court. In Rivera, e.g., it might shock the conscience maliciously police broke their promise, but not simply if they made a mistake when trying to protect her.
Thus, my rule would offer protection for plaintiffs who become vulnerable only after receiving promises of protection from government officials while not opening the floodgates of civil rights claims.
UPDATE: Tom Lincoln has a good post here.