Am Law 100
Me on Rush about Kelo

Castle Rock's Disappointing Message

It has long been the case that police officers could not be sued for their failure to protect a person. But it took the Castle Rock decision to extend that doctrine one step further: Officers don't even have a duty when a court imposes one.

The plaintiff sought protection from the courts from an abusive spouse. She obtained a protective order requiring that her husband be arrested if he violated the order. The court granted the order.

Well, the husband violated it. He took the couple's three children. The plaintff called the police, who did next to nothing. The children are now dead, at the hands of the man a court had restrained.

The majority of the court held this was not a property interest giving rise to a claim under the Fourteenth Amendment. The more obvious constitutional route, that the police failure shocked the conscience, was foreclosed by the holding of DeShaney in 1989 barring substantive due process claims in failure to protect cases.

It would not have mattered had the plaintiff plead her case as a liberty interest, I suspect. The analysis would have been largely the same. The deeper policy impulses compelling the conclusion reached favored the "well-established tradition of police discretion," according to Justice Scalia.

The court reasoned that state remedies may well exist. In Connecticut, there is an exception to municpal immunity in cases in which an identifiable victim is in immanent risk of harm. It is a difficult needle to thread.

Given DeShaney, Castle Rock was a foregone conclusion. But it needn't have turned out this way. There was an easy distinction that could have been drawn: The court order in Castle Rock transformed this case from one about mere private expectations to one involving whether the state can be held accountable for breaking its commitment to protect a person who had sought the shelter of the court.

By abandoning the plaintiff in Castle Rock, police officers showed something less than respect for the authority of the court and for the rule of law. The Supreme Court's ruling sends a message to vulnerable people: Trust not the courts. It leaves one wondering whether the hidden message to plaintiffs in cases such as these is that self-help and a hand gun are your only real hope for relief.