For the last few years, we have seen time and again police officers shooting individuals in custody or after being pulled over for a traffic violation.  Even in our public schools, we unfortunately learn about public school employees assaulting students either physically or sexually.  Of course the victims have been harmed and injured, but under the law, how is it that the victims can bring an action under the United States Constitution?  This blog entry will serve as a very short, but informative, primer on the contexts and circumstances when persons injured by governmental employees and officials can bring claims for money under the Constitution.   The vehicle that allows such lawsuits to be brought is a federal statute – 42 U.S.C. §1983, which allows for claims when a “right protected by the Constitution of law of the United States has been violated  by a person acting under the color of state law.”  Under the 14th Amendment of the Constitution, the particular language that may provide persons with a claim is: “. . . nor shall any state deprive any person of life, liberty, or property, without due process of law.”  This famous phrase is known as the due process clause.  So what does this mean?  In short, if a governmental employee acts in a way that is out of bounds of proper protocol and is grossly abusive and unfair, causing harm – that is, “deprive” you of your life, liberty or property – you may have the makings of a constitutional claim.

Yet, the due process clause does not impose or require the government to affirmatively protect citizens from the acts of private individuals.  In other words, you do not have a constitutional claim by merely saying that the state failed to do something which led to harm. But there are two large exceptions. To have a chance of a successful constitutional claim, an affirmative duty arises in what the courts have described as either a “special relationship” or “state –created danger.”

Special Relationship
When the state enters into a special relationship with a citizen and then “fails to protect the health and safety of the citizen to whom it owes an affirmative duty,” a due process claim may be available.  Examples of such special relationships are incarcerated individuals, involuntarily committed persons and children placed in foster care. In these situations, the government or state has a special relationship that requires the state to protect the life and liberty of the citizen. A clear example would be where a foster child is placed with foster parents that is known by the state to have a history of child abuse. The state’s special relationship with the foster child requires adequate background checking of the foster parents. Where the child suffers injury or even death at the hands of the foster parents, the county youth services, as a state actor, may be liable under the due process clause of the Constitution.

State-created Danger
Under this theory, a constitutional violation may be established where an individual is harmed by certain state actions. If such actions “create” or “enhance” a danger that deprives one of her 14th Amendment rights, a claim can also be brought under this theory. Two notable cases serve as tragic but clear examples of state-created dangers.  In one case, a young child in public school was released to a stranger who harmed the child. In another, state troopers allowed a very intoxicated woman late at night to get home on her own. They did not escort her or otherwise do anything to intervene. The woman later died that night.  In both of these cases, the “state” – the school official and state troopers – took steps that created the danger that caused the type of harm that was certainly possible and foreseeable.  Common sense would instruct that releasing a minor to a complete stranger and allowing a very intoxicated woman to find her way home late at night would result in harm and a bad outcome.

Therefore, constitutional claims are real and can be meritorious.  However, a full sets of facts and analysis is required by attorneys fluent in this area of law to determine if there is  a viable constitutional claim. The standard is high to make out such claims, but our society demonstrates time and again that there are many state actors that commit acts in violation of people’s 14th Amendment rights.  In these instances, the Constitution has afforded citizens recourse to recover from the harm resulting from the abuses and excesses of government action.