Crime & Federalism

DeShaney (and in a few months, Castle Rock) stands for the proposition that the government does not owe citizens any affirmative duties.  That is, the government is not required to protect us from private violence, even when the government promises to help.  One justification for this is, as Sandefur notes:

Rehnquist is absolutely right when he says that allowing tort recovery in DeShaney would create a perverse incentive for government child protective agencies to simply shut down completely, so as to avoid suit. What is your answer for this? You've provided none, and it's a serious objection.

Two points.  First, holding a municipality liable is difficult.  Under Monell, a local government is only liable if it has a policy or custom that is the moving force behind a rights violation.  Showing that the city has a policy or custom of a failing to train its employees is one way to hold a city liable. 

But a policy or custom can not usually be shown with evidence that one social worker was a bad actor.  There generally has to be evidence of a pattern or practice of bad acts.  So, to even hold a city liable, the city has to know that social workers are regularly violating people's rights, and the city ignored or ratified the misconduct.

Moreover, even if a city indemnifies social workers, it's hard to make the city pay.  There's a split in the circuits, but this split benefits social workers either way -- Social workers have either qualified or absolute immunity for suit.  So if the social worker walks because of the immunity doctrines, the city will not be held liable.

So my first argument is a question: Do we want governmental entities that ignore its employees' bad acts serving us?  After all, we can only hold cities liable after showing they had a policy or custom of ignoring unconstitutional acts.  I think the answer is, "No," because those "social workers" tend to harm more than help.  Read this article for a good example of the harm social workers cause.

Second, just as there is the crowding out effect when governments borrow money from private banks (re: then private entrepreneurs can't borrow the money), so too is there a crowding out effect when the government monopolizies social services.  A story from my life illustrates this.

When I was 16, my family had a neighbor who regularly abused his two dogs.  Abusing the weak around me is a stupid because I have pretty solid wits, and a pretty solid physical frame.   Because this neighbor was a pseduo-relative, I resisted my visceral impulses.  Instead, I called the police.  They, however, did nothing.  And they would not do anything.

Realizing that the government would not help, I told my aunt (the cousin of this miscreant) to relay the following message: "If you touch those dogs again, Michael said he will beat you to within one inch of your life."  Sure enough, the abuse stopped.  But I took action only after the government would not act. 

But these days we expect the government to take care of every problem -- Those of us who might take actions to stop child abuse, don't.  "The government will do something," we say to ourselves.  Indeed, if I took action to stop a child abuser, chances are I would be called a vigilante and punished by the state.  Thus, there is a perverse disincentive for private parities to be our "brother's keeper."

So my answer to Rehnquist's argument is this: Holding local governments liable under the current "neglience-plus" standard would have two valuable results.  First, it would encourage localities that don't care about constitutional rights to shut down.  Second, with the corrupt government agencies no longer monopolizing social justice, private citizens would turn to social and other sanctions to prevent child abuse.