Woe is I
New Orleans and Civil Society

Behrens v. Regier

Behrens v. Regier, 2005 WL 2085656, (11th Cir., 2005) presents an all too common problem for plaintiffs bringing actions arising under 42 U.S.C. Section 1983. State actors under color of law have erred, egregiously so, and yet there is nothing to be done as a matter of constitutional law.

The facts are simple. Behrens and his wife have both a natural and an adopted child. They would like to adopt a third. Trouble is that years ago an accident at the family home led to the injury of their adopted child. Florida's Department of Children and Families investigated, as did the state's attorney. No criminal charges were brought and a Florida circuit court dismissed the allegations of abuse as they were not proven by a preponderance of the evidnce.

So why is Behrens still listed in as a "verified" child abuser in DCF records?

Behrens sued contending that he had not been given a name-clearing hearing in violation of his right to procedural due process. He further contended that his right to substantive due process had been abridged.

The 11th Circuit applied the stigma-plus test of Paul v. Davis, 424 U.S. 693 (1976), to these facts and granted a motion to dismiss. While the plaintiff had made out a claim that the DCF workers had stigmatized him, the plaintiff failed to establish that he had been deprived some more tangible Constitutional interest. Put another way, he had no liberty interest or property interest in the desire to once again become a foster parent. It is a harsh, but correct, ruling. The desire to become a foster parent once again looks an awful lot like a mere expectancy, although the 11th Circuit did not use that term.

Behrens raised an interesting argument that his legal right to become a foster parent had previously been recognized, given his prior adoption. However, the court held that this did not create a prospective right to adopt again.

The court then made short work of the  substantive due process claim observing that there is no fundamental right to apply for adoption. The court's refusal to even consider the possibility that a government official who recklessly maintains records of false information about a citizen might undermine the rights implicit in the concept of ordered liberty is disturbing. Have we created a government of laggards capable of any reckless incompetence, but beyond the reach of law?

Behrens appears never to have raised an equal protection claim. Arguably, that may have been his best shot at a jury. Why not argue that he was treated different than other similarly situated persons? Of course, discovering the necessary facts to withstand summary judgment on this theory would be costly. But it is hard to believe that Florida never expunges the records of those once accused of neglect and refuses ever to cease calling people "verified" child abusers once courts have dismissed actions claiming abuse.

The import of the case? It establishes no new legal principle, and is not cert. worthy. It reminds once again that mere defamatory acts cannot support a constitutional claim. But it does illustrate the degree to which the due process clause can be eviscerated to shield the truly incompetent from the consequences of their errors.