Me on Rush about Kelo
Danger Creation in Kennedy v. City of Ridgefield

The Government Can Lie

Like Norm, I knew that Castle Rock's outcome was preordained, and yet I'm still disappointed.  In Castle Rock, the government told a mother that it would protect her and her children.  And then lied.

Castle Rock did not involve a slow reaction to a 9-11 phone call.  It involved an affirmative - and dangerous - lie.

When a person files a retraining order against an abusive lover, anger elevates: seeking a restraining order often puts one in more danger than before.  Yet government attorneys will encourage domestic violence victims to seek one.  "We'll protect you," they say. 

After Casle Rock, the government, unlike you or me, can promise to protect someone - and then wilfully break that promise.  The government can assume a duty, and breach that duty without consequence.  A recent pre-Castle Rock decision illustrates why one should never depend on the government.

In Rivera v. Rhode Island (CA1), 15-year old Jennifer Rivera witnessed a gangland murder.  She was too afraid to testify, though, because everyone knew that crossing the gang would mean the death penalty.  But the police promised that they would protect her.

When they broke that promise, little Miss Jennifer died.  Of course, the government faced no consequences.

One reason for not holding them liable is that the police must discretion to enforce the law as they please.  That's reasonable.  But that discretion should be bound when they make promises.

In Castle Rock, the Court could have sent a powerful message to state actors: Don't make promises you don't intend to keep.  It's something most of us learned in as children, but it's something those drunk from power and dizzy from a life of unaccountability no longer remember.

Instead, the Court looked at the potential problems of such a rule.  It let its need to protect government officials from suit overcome the need to hold the government liable. 

The thumb is often on the scales in favor of the government in civil rights cases.  After Castle Rock, there seems to be a fist - an iron fist.

UPDATE: Mackenzie has a post on Castle Rock not to be missed.