R.M.P Marotta Long Island

Actionable Inaction: Section 1983 Liability
for Failure to Act

Section 1983 of the Civil Rights Act of 1871 creates a federal cause
of action against state officials who deprive private citizens of their
constitutional rights.1 Increasingly, courts have attempted to de-
fine the circumstances under which a state may be held liable for
its failure to act to prevent a particular deprivation.2 Holding a
state liable for its inaction in effect imposes upon it an affirmative
duty of protection. Recognizing this, most courts have not imposed
affirmative duties on the states; they view the Constitution as,
principally, a “charter of negative liberties” 3 designed to prohibit
certain state actions rather than mandating them.
The first section of this comment will examine the current
case law. Most courts have held that a state must take action to
protect an individual only when there exists a “special relation-
ship” between the state and that individual. In attempting to de-
fine the requisite special relationship, the courts have adopted two
distinct modes of analysis, both borrowed from the common law of
tort. One approach focuses on whether the state caused the harm
to the individual, the other on whether the state had a duty to
protect the injured person.
Part II argues that these approaches are misguided. The con-
cept of special relationship fails to provide a viable constitutional
basis for the obligation to protect citizens. It is incorrect to resolve
these “failure to act” cases on the basis of general theories of tort
42 U.S.C. § 1983 (1982).
2 For the sake of convenience, this comment uniformly refers to the party being sued
as the “state,” even though states, government agents, and municipalities all may be de-
fendants under section 1983. Of course, a state itself cannot be liable for damages under
section 1983 because of the eleventh amendment. U.S. CONST. amend. XI; see also Hans v.
Louisiana, 134 U.S. 1, 21 (1890); Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378, 381 (1798).
The conduct of state officials, however, may make them personally liable for damages in a
suit under section 1983, see Monroe v. Pape, 365 U.S. 167, 172 (1961), or may provide the
basis for an injunction against the state, see Ex ParteYoung, 209 U.S. 123, 159-60 (1908);
cf. Edelman v. Jordan, 415 U.S. 651, 663-71 (1974) (disallowing injunctive relief with retro-
active effects on the state treasury). Municipalities may also be sued under section 1983,
where the complaint alleges that the execution of a “policy or custom” of the municipality
led to the injury in question. See Monell v. Department of Social Servs., 436 U.S. 658, 694
(1978).
3 Bowers v. Devito, 686 F.2d 616, 618 (7th Cir. 1982).
1048
State Liability for Failure to Act
liability. Conceptions of causation and duty derived from the com-
mon law do not necessarily apply to the deprivations of constitu-
tional rights that are actionable under section 1983. It is equally
inappropriate to resolve state inaction cases by simply asserting
that the states have no general duty to provide basic services in
the first instance.
By drawing an analogy to recognized “property” entitlements,
Part III provides a more appropriate constitutional basis for ana-
lyzing state inaction cases. These cases are best understood within
the larger context of state action; they consist of the failure to
render a service or confer a benefit in a particular case where that
service or benefit has already been provided on a general basis to
the community. Once services or benefits have been conferred gen-
erally, the state’s authority to withhold them in a particular in-
stance should be governed by the due process clause. If the service
or benefit is a “property” interest, then the due process clause
commands that the state may not withhold it without providing
procedural protections.4
I. CURRENT CASE LAW
A. Special Relationships
Section 1983 of the Civil Rights Act of 1871 renders individu-
als in state government liable when they deprive citizens of “any
rights, privileges or immunities secured by the Constitution and
laws.” 5 Consequently, the first step in a section 1983 claim is to
“isolat[e] the particular constitutional infringement complained
4 See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970) (state must provide evidentiary hear-
ing before federal assistance is terminated).
” 42 U.S.C. § 1983 (1982). This provision, enacted as section 1979 of the Civil Rights
Act of 1871, was originally a part of the general civil rights legislation passed by Congress
after the Civil War in an effort to give substantive freedom to the emancipated slaves. See,
e.g., Slaughter-House Cases, 83 U.S. (16 Wallj 36, 71 (1873) (noting that the “one pervading
purpose” of the thirteenth, fourteenth, and fifteenth amendments was “the freedom of the
slave race, the security and firm establishment of that freedom, and the protection of the
newly-made freeman and citizen from the oppressions of those who had formerly exercised
unlimited dominion over him”).
A section 1983 plaintiff must also show that the defendant was an individual who acted
under color of state law. See 42 U.S.C. § 1983 (1982). Generally, this condition is satisfied if
the individual’s conduct would constitute “state action” for the purposes of the fourteenth
amendment. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 (1982) (“If the challenged
conduct of respondents constitutes state action as delimited by our prior decisions, then
that conduct was also action under color of state law and will support a suit under § 1983.”);
see also Griffin v. Maryland, 378 U.S. 130, 135 (1964) (action of one who possesses state
authority and purports to act according to that authority is state action even if not author-
ized under state law, and may violate the equal protection clause).
1049
1050 The University of Chicago Law Review [53:1048
of.”6 It is this task that makes inaction claims perplexing: can the
failure of the state to prevent harm to one of its citizens constitute
a constitutional violation?
One way to answer this question would be to define the state’s
constitutional duties by common law tort principles. In other
words, the state actor would be held to violate a citizen’s constitu-
tional rights, and thus be subject to section 1983 liability, if his
conduct would be considered a tort under state law. Hence, where
tort law would impose liability on the individual for his failure to
prevent harm to another, section 1983 would do so as well.
Generally speaking, however, state tort law principles do not
determine the kinds of conduct that will give rise to a cause of
action under section 1983. Two recent decisions of the Supreme
Court reaffirmed this principle, holding that merely negligent con-
duct by state officials can never be a constitutional violation, even
though it may give rise to state tort liabilities.” Section 1983 simply
does not render every tort committed by a state official, even when
she is acting in an official capacity, a violation of the Constitution.9
Instead, section 1983 renders every state violation of the Constitu-
0 Martinez v. California, 444 U.S. 277, 284 n.9 (1980).
7 Paul v. Davis, 424 U.S. 693, 712 (1976) (“interest in reputation is simply one of a
number [of things] which the State may protect against injury by virtue of its tort law”). It
should be noted that the principles underlying actions brought under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80 (1982), may to some extent overlap with the
principles that underlie section 1983 actions. There are, however, two important differences.
First, actions under the FTCA are limited to those in which the United States government
has consented to being sued. Id. § 2674; see also id. § 2680 (listing exceptions to general
consent). Second, the FTCA applies only to the conduct of federal officials; the conduct of
state officials is not actionable under the statute. See id. § 2671 (defining “employees”
whose activities may give rise to a cause of action as federal employees). Thus, the two
actions are completely separate; although the principles of the two actions may overlap in
some part, they do so only by coincidence.
8 See Davidson v. Cannon, 106 S. Ct. 668, 670 (1986); Daniels v. Williams, 106 S. Ct.
662, 663 (1986). Many of the cases discussed in this comment involve allegations of merely
negligent failure to act, for which recovery would now be denied after the Supreme Court’s
decisions in these two cases. Danielsand Davidson do not affect the principles discussed in
this comment, although they may reduce the number of cases to which these principles
apply. This comment is concerned with the circumstances under which a duty may arise,
and not with the scope of that duty once it is found. Moreover, it is likely that future claim-
ants will frame their allegations in terms of recklessness or deliberate indifference, mental
states which the Court has not found insufficient to establish liability under section 1983.
The issue of whether recklessness or gross negligence would be sufficient to create a cause of
action under section 1983 was left undecided by the Court. See Daniels, 106 S. Ct. at 667
n.3. The Court did, however, cite Estelle with approval, id. at 664, which had held that
“deliberate indifference” to eighth amendment rights was sufficient to create section 1983
liability, see 429 U.S. at 103-04.
9 See, e.g., Paul, 424 U.S. at 701 (section 1983 is not a “font of tort law to be superim-
posed upon whatever systems may already be administered by the States”).
State Liability for Failure to Act
tion actionable; it contains no substantive prohibitions of its own.
Even though section 1983 is not entirely congruent with state
tort principles, courts have invoked the tort concept of “special re-
lationship” to decide when a state has an affirmative duty to act. 10
Courts uniformly agree that recovery for a state’s failure to act is
appropriate in some cases in which a “special relationship” exists
between the state and an individual.” Just as tort law recognizes
no general affirmative duty to aid others, 2 courts applying section
1983 recognize no general government duty to provide services.’ 3
But just as a tort duty may arise when a person stands in a “spe-
cial relationship” to the person who needs help,’ 4 so too, courts
have held, may a constitutional duty arise from such a relationship
between the state and an individual. Hence, even the Seventh Cir-
cuit, which has taken a very limited view of affirmative constitu-
tional duties, concedes that certain state actions create relation-
ships that can trigger section 1983 liability. 5
Courts also look to tort law for the factors that indicate
whether a special relationship exists: foreseeability of harm to the
claimant;” the perpetrator’s status as an agent of the state; 17 the
state’s declared intention to protect a certain class of individuals;,
and reliance by an individual on implied or express promises of
protection by the state.’ 9 These various factors represent two dis-
tinct tort theories of liability. Some, like agency status, are con-
10See generallyW. KEETON, D. DOBBS, R. KEETON & D. OWEN, PROSSER AND KEETON ON
THE LAW OF TORTS § 56 (5th ed. 1984) (describing the traditional distinction between mis-
feasance and nonfeasance, discussing the traditional reluctance to grant recovery on the ba-
sis of nonfeasance alone, and noting that “special relationships” may give rise to an affirma-
tive duty to act).
” See Jensen v. Conrad, 747 F.2d 185, 190-94 (4th Cir. 1984) (tracing development of
“special relationship” doctrine for state inaction liability), cert. denied, 105 S. Ct. 1754
(1985).
” See, e.g., Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959) (defendant has no duty to
rescue even where he cajoled his neighbor into jumping into a trench full of water, where the
neighbor then drowned).
S See, e.g., Bowers v. Devito, 686 F.2d 616, 618 (7th Cir. 1982).
1H See generally W. KEETON, D. DOBBS, R. KEETON & D. OWEN, supra note 10, § 56.
15 See Bowers, 686 F.2d at 618. After noting that “[t]he Constitution is a charter of
negative liberties,” Judge Posner nevertheless declared that “[i]f the state puts a man in a
position of danger from private persons and then fails to protect him, it will not be heard to
say that its role was merely passive; it is as much an active tortfeasor as if it had thrown
him into a snake pit.” This “position of danger” test operates exactly as a “special relation-
ship” to expose the state to section 1983 liability for failure to act.
N See, e.g., Jensen v. Conrad, 747 F.2d 185, 194 n.11 (4th Cir. 1984), cert. denied, 105
S. Ct. 1754 (1985).
17 See, e.g., Martinez v. California, 444 U.S. 277, 285 (1980).
” See, e.g., Jensen, 747 F.2d at 194 n..
” See, e.g., P.L.C. v. Housing Authority, 588 F. Supp. 961, 965 (W.D. Pa. 1984).
19861 1051
The University of Chicago Law Review
cerned primarily with whether the state was the proximate cause
of the harm. Others, like a declared intention to protect, reflect a
conception of obligation: did the state have a duty to protect the
injured party? Various courts have emphasized each of these theo-
retical bases for special relationships; as a result, they have dif-
fered about when state inaction may violate the Constitution.
Some courts argue that liability exists when the state was the prox-
imate cause of the harm.20 A majority of the courts, however, sug-
gest that a special relationship-and hence liability-arises from
the state’s duty to protect the injured individual. 2 ‘

1. Proximate Causation. Martinez v. California22 demon-
   strates the importance of proximate cause in state inaction cases.
   There the Supreme Court considered a claim for section 1983 relief
   brought by the parents of a girl who had been murdered by a pa-
   roled sex offender. 23 The parents asserted that the state’s release of
   the murderer caused their daughter to be deprived of her life with-
   out due process of law. Emphasizing the fact that “the parole
   board was not aware that appellants’ decedent, as distinguished
   from the public at large, faced any special danger,” ‘2 4 the Court
   held that the injury was “too remote a consequence” of the related
   state action to hold the state responsible. 25 The Court reasoned
   that the only aggressive state action was the decision of the parole
   board to release the murderer. The Court further supported its de-
   cision by noting that five months had elapsed since the assailant’s
   release and concluded that the parolee was “in no sense an agent
   of the [state].” e
   20 See, e.g., Humann v. Wilson, 696 F.2d 783, 784 (10th Cir. 1983).
   21 See, e.g., Jensen, 747 F.2d at 191-94 (citing cases).
   22 444 U.S. 277 (1980).
   23 Id. at 279-81.
   24 Id. at 285. Although the Court did not explicitly discuss the concept of a “special
   relationship,” its reference to knowledge of a “special danger” has prompted the courts’
   interest in special relationships. See, e.g., Fox v. Custis, 712 F.2d 84, 88 (4th Cir. 1983).
   Although subsequent cases emphasizing “special relationships” in section 1983 suits have
   dealt explicitly with state inaction, see, e.g., Fox, 712 F.2d at 84, the issue of the state’s
   failure to supervise the parolee after his release was not before the Supreme Court in Marti-
   nez, see 444 U.S. at 280 n.2.
   25 Martinez, 444 U.S. at 285. The Court did not explain why it based its decision on
   the tort concept of causation rather than on duty. Indeed, the Court made only a single
   reference to “duty” while describing the plaintiff’s potential claims under state tort law. Id.
   (“Regardless of whether, as a matter of state tort law, the parole board could be said either
   to have had a ‘duty’ to avoid harm to his victim or to have proximately caused her death,
   . . . we hold that, taking these particular allegations as true, appellees did not ‘deprive’
   appellants’ decedent of life within the meaning of the Fourteenth Amendment.”).
   26 Id. The Court in Martinez expressly refused to hold that a parole board could never
   be held liable for its decision to release a dangerous parolee. Id.
   1052 [53:1048
   State Liability for Failure to Act
   Following the Supreme Court’s lead, several courts have ruled
   that the lack of a special relationship between the state and the
   plaintiff precludes recovery under section 1983 for failure to act
   unless the plaintiff establishes that the state was the proximate
   cause of the harm. These courts use the Martinez factors of fore-
   seeability of harm, lapse of time, and agency in determining
   whether or not proximate cause exists,27 though foreseeability of
   harm, or the lack thereof, is generally the decisive factor.2 8 These
   lower courts give no explanation for their focus on causation rather
   than duty; they simply cite Martinez without comment.29
2. Duty. Courts that focus on duty rather than proximate
   cause typically analogize state inaction cases to a series of section
   1983 cases brought by prisoners under the eighth amendment.3 0 In
   Estelle v. Gamble,3 1 the Supreme Court held that prison officials
   could be held liable under section 1983 for displaying “deliberate
   indifference” to the medical needs of prisoners. Noting that the
   eighth amendment’s prohibition of “cruel and unusual punish-
   ment”3 2 precluded the unnecessary and wanton infliction of pain,
   the Court concluded that deliberate indifference to a prisoner’s se-
   rious illness or injury was constitutionally proscribed.3 3 The
   Court’s decision also rested on a concept of “fairness” that requires
   the state to take upon itself a special duty of protection when it
   imprisons a person and thereby deprives her of her ability to seek
   2 See, e.g., Humann v. Wilson, 696 F.2d 783, 784 (10th Cir. 1983) (lapse of only two
   months between transfer of inmate to low-security community center and rape of claimant
   held insufficient to distinguish case from Martinez); Estate of Gilmore v. Buckley, 608 F.
   Supp. 554 (D. Mass. 1985) (liability denied on issue of causation), afl’d, 787 F.2d 714 (1st
   Cir. 1986).
   2 See, e.g., Humann, 696 F.2d at 784. But see Estate of Gilmore, 608 F. Supp. at 558
   (liability denied despite alleged foreseeability of harm to murdered woman).
   ” See, e.g., Humann, 696 F.2d at 784.
   10 For discussion of this development, see Jensen v. Conrad, 747 F.2d 184, 190-94 (4th
   Cir. 1984), cert. denied, 105 S. Ct. 1754 (1985).
   :1 429 U.S. 97, 104-05 (1976).
   3: U.S. CONST. amend. VIII.
   ‘s Estelle, 429 U.S. at 104 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint
   opinion of Stewart, Powell, and Stevens, JJ.)). The concept of “deliberate indifference” has
   been further refined in subsequent cases. Deliberate indifference may be demonstrated ei-
   ther by a showing that prison officials intended to deprive the prisoner of a constitutional
   right or by a showing that they acted in “reckless disregard” of the prisoner’s rights. See,
   e.g., Martin v. White, 742 F.2d 469, 474 (8th Cir. 1984). Reckless disregard, in turn, may be
   shown by “a pervasive risk of harm” to inmates and a failure to take reasonable measures in
   response to that risk. See Martin,742 F.2d at 474; Withers v. Levine, 615 F.2d 158, 161 (4th
   Cir.), cert. denied, 449 U.S. 849 (1980); Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir.
   1973). To show a “pervasive risk of harm,” a claimant need not allege that a “reign of vio-
   lence and terror” existed in the prison; it is sufficient that “an identifiable group of prison-
   ers” fears for its safety. Withers, 615 F.2d at 161.
   1986] 1053
   The University of Chicago Law Review
   help from other sources.3 4
   Courts have justified their adoption of eighth amendment
   analysis for state inaction cases in several different ways. Some
   suggest that Estelle’s emphasis on “fairness” demonstrates that
   the relationship between the state and an individual can create a
   duty of protection outside the prison context.3 5 This rationale has
   been used by the Second Circuit, for example, to find liability on
   the part of a state foster agency for its “deliberate indifference” to
   the continuing abuse of children under its supervision. 6
   Other courts have invoked the concept of detrimental reliance,
   hinted at by the Court in Estelle.37 In P.L.C. v. Housing Author-
   ity,s8 a federal district court considered a claim for section 1983
   relief brought on behalf of a woman who had been sexually as-
   saulted by a Housing Authority maintenance employee.3 9 Despite
   its knowledge of his prior history of sexual assaults and alcoholism,
   the agency hired the man and provided him with a pass key to all
   of the apartments within the victim’s apartment complex. The
   court noted that the state created the Housing Authority for the
   purpose of providing safe, sanitary housing for people in low-in-
   come groups. 40 Granting recovery, the court concluded that the
   tenant had relied on the state for her housing and that a special
   relationship had thereby arisen between the state and the tenant.”1
   The Seventh Circuit, on the other hand, suggests that the rela-
   tionship between the state and the victim or perpetrator of the
   harm creates a duty for the state to act when its inaction is tanta-
   mount to positive action. “If the state puts a man in a position of
   danger and then fails to protect him . . . it is as much an active
   tortfeasor as if it had thrown him into a snake pit. ’42 However, if a
   person voluntarily assumes such a position of danger, section 1983
   liability does not follow. 43 Under this analysis, a state’s duty to act
   ” Estelle, 429 U.S. at 103-04 (“An inmate must rely on prison authorities to treat his
   medical needs; if the authorities fail to do so, those needs will not be met …. ‘[I]t is but
   just that the public be required to care for the prisoner, who cannot by reason of the depri-
   vation of his liberty, care for himself.’ “) (quoting Spicer v. Wiliamson, 191 N.C. 487, 490,
   132 S.E. 291, 293 (1926)).
   :5 See Jensen, 747 F.2d at 194.
   ‘6 See Doe v. New York City Dep’t of Social Servs., 709 F.2d 782, 790 (2d Cir.), cert.
   denied, 464 U.S. 804 (1983).
   37 429 U.S. at 103; see supra note 34.
   :8 588 F. Supp. 961 (W.D. Pa. 1984).
   Id. at 962.
   40 Id. at 964.
   41 Id. at 965.
   42 Bowers v. Devito, 686 F.2d 616, 618 (7th Cir. 1982).
   43 See Walker v. Rowe, 791 F.2d 507, 511 (7th Cir. 1986) (“The state must protect
   1054 [53:1048
   State Liability for Failure to Act
   arises when it places a person’s life in jeopardy and does not pro-
   vide her with some positive protection. 4
   Another factor considered by the courts is the state’s declared
   intention to protect a certain individual or class of individuals. For
   example, a statute creating an agency to select and monitor the
   homes into which foster children are placed has been deemed evi-
   dence that a special relationship may exist between the state and
   the foster children. 45
   B. Situations Involving No Special Relationship
   To understand more thoroughly the concept of special rela-
   tionships, it is useful to examine cases in which courts have failed
   to find such a relationship. Many courts refuse to find such a rela-
   tionship merely because the state has chosen to provide basic ser-
   vices to its citizens. 46 Such an obligation, as Judge Posner has ex-
   plained, would be inimical to the theoretical underpinnings of the
   Constitution:
   [T]here is no constitutional right to be protected by the state
   against being murdered by criminals or madmen. It is mon-
   strous if the state fails to protect its residents against such
   predators but it does not violate the due process clause of the
   Fourteenth Amendment or, we suppose, any other provision
   those it throws into snake pits, but the state need not guarantee that volunteer snake
   charmers will not be bitten.”); see also Rankin v. City of Wichita Falls, 762 F.2d 444, 449
   (5th Cir. 1985).
   ” This approach has led the Seventh Circuit to reaffirm its earlier decision granting
   recovery to claimants who, as young children, had been left stranded on a highway in the
   winter when police arrested their uncle and guardian. See Ellsworth v. City of Racine, 774
   F.2d 182 (1985) (reaffirming White v. Rochford, 592 F.2d 381 (7th Cir. 1979)).
   ” See Jensen v. Conrad, 747 F.2d 185, 195 n.11 (4th Cir. 1984), cert. denied, 105 S. Ct.
   1754 (1985). Where the courts have discovered that a duty of protection does exist, they
   have generally undertaken a causation analysis as well. For example, the Fourth Circuit
   considered both duty and proximate cause when it concluded that an examination of the
   Martinez causation factors did not produce a clear-cut result. See Fox v. Custis, 712 F.2d
   84, 87 (4th Cir. 1983). The court held that no state duty existed except when a special
   relationship existed between the state and the claimant. It then determined that no rela-
   tionship could exist when the plaintiffs are simply members of the general public, and the
   state officials are “‘unaware that the [claimants] as distinguished from the public at large
   faced any special danger.’ ” Id. at 88 (quoting Martinez, 444 U.S. at 285) (footnote omitted).
   Thus, the court’s proximate cause and duty inquiries both turned on the foreseeability of
   harm to the plaintiff. Id. at 88 n.3; see also Estate of Bailey v. County of York, 768 F.2d 503,
   505-11 (3d Cir. 1985) (engaging in extensive duty analysis but ultimately deciding the case
   on proximate causation grounds).
   46 See, e.g., Estate of Bailey, 768 F.2d at 511; Beard v. O’Neal, 728 F.2d 894, 900 (7th
   Cir. 1984); Wright v. City of Ozark, 715 F.2d 1513, 1516 (11th Cir. 1983); Jackson v. City of
   Joliet, 715 F.2d 1200, 1203-06 (7th Cir. 1983); Fox, 712 F.2d at 88.
   1986] 1055
   The University of Chicago Law Review
   of the Constitution. The Constitution is a charter of negative
   liberties; it tells the state to let people alone; it does not re-
   quire the federal government or the state to provide services,
   even so elementary a service as maintaining law and order.
   The state’s decision to provide basic services to the general public
   thus does not obligate it to render assistance in any specific
   situation.
   This understanding is a variation of the familiar principle that
   “the greater power includes the lesser power. ‘ 48 On this reasoning,
   the state’s acknowledged power to decide whether or not to pro-
   vide certain basic services at all gives it impunity if it denies or
   fails to render services in a particular case. Under this approach,
   the question of whether any duty exists in a particular case turns
   on whether such a duty exists in general.4 9
   This reasoning has led courts to deny recovery to claimants
   who allege that their injury was caused by the state releasing a
   prisoner on parole and then failing to supervise the parolee.5 0 Re-
   covery has also been consistently denied when the plaintiff’s injury
   is alleged to have resulted from inadequate government services, 51
   and when police officers or their agents are alleged to have failed to
   prevent an injury that occurred in their presence. 2 In one exem-
   7 Bowers, 686 F.2d at 618.
   48 Cf. Myers v. United States, 272 U.S. 52, 177 (1926) (Holmes, J., dissenting) (refer-
   ring to Congress’s power to create the office of postmaster and reserve for itself removal
   power, Holmes wrote that “[w]ith such power over its own creation, I have no more trouble
   in believing that Congress has power to prescribe a term of life for it free from any interfer-
   ence than I have in accepting the undoubted power of Congress to decree its end”).
   49 For a criticism of this position, see infra notes 74-81 and accompanying text.
   ” See, e.g., Martinez v. California, 444 U.S. 277 (1980); Humann v. Wilson, 696 F.2d
   783 (10th Cir. 1983); Bowers v. Devito, 686 F.2d 616 (7th Cir. 1982); Estate of Gilmore v.
   Buckley, 608 F. Supp. 554 (D. Mass. 1985), aff’d 787 F.2d 714 (1st Cir. 1986). But cf. Beck v.
   Kansas Univ. Psychiatry Found., 580 F. Supp. 527, 533-34 (D. Kan. 1984) (plaintiffs stated a
   section 1983 cause of action against officials who released a prisoner who was known to pose
   a special danger to the decedents).
   51For example, the Seventh Circuit has denied relief in two cases where plaintiff’s in-
   jury resulted from the failure of rescue workers to prevent the kinds of harms they were
   hired to prevent. See Jackson v. Byrne, 738 F.2d 1443 (7th Cir. 1984) (recovery denied in
   section 1983 action arising from deaths of two children caused by fire that occurred during a
   firefighters’ strike); Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir. 1983) (recovery denied
   in section 1983 action involving deaths of two people from a car fire, where rescue workers
   failed initially to check the burning car for survivors).
   62 See, e.g., Beard v. O’Neal, 728 F.2d 894 (7th Cir. 1984) (FBI informant had no duty
   to prevent murder of plaintiff’s decedent which occuried in his presence); Escamilla v. City
   of Santa Ana, 606 F. Supp. 928 (C.D. Cal. 1985) (undercover officers had no duty to inter-
   vene on behalf of innocent bystander who was killed during shooting incident). But see
   Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972) (police have duty to prevent plaintiff from being
   beaten by other police officers in their presence); Whirl v. Kern, 407 F.2d 781 (5th Cir. 1968)
   1056 [53:1048
   State Liability for Failure to Act
   plary case, recovery was denied to a rape victim who alleged that
   the city had deliberately withheld information regarding a series of
   rapes in the area of town where she was attacked.5
   II. A CRITIQUE
   A. Causation
   Courts that place primary reliance on the concept of causation
   to determine section 1983 liability tend to confuse the proper anal-
   ysis in two ways. First, they ignore vital interactions between cau-
   sation, duty, and constitutional rights; in essence, they seem to be-
   lieve that remote causation makes any inquiry into special
   relationship superfluous. Second, by focusing on causation, some
   courts recharacterize state inaction cases and implicitly force them
   into a state action analysis.
   By concentrating on foreseeability of harm to demonstrate
   proximate cause, some courts ignore the critical initial inquiry in a
   section 1983 action-whether the alleged injury resulted from the
   state’s deprivation of a constitutional right. 4 State officials may be
   liable for their inaction only when they deliberately or recklessly
   fail to act. However, even where there is a deliberate failure to act
   that causes harm, state inaction will not be actionable unless there
   exists a duty to act-a duty that must arise under the Constitu-
   tion. 5 1 Certain “undertakings” to provide protection may create an
   affirmative constitutional duty, but only if a principle can be found
   in the Constitution to impose that duty, not simply because the
   state is said to have “caused” the harm. 6
   The logic of putting the issue of duty first is plain: if there is
   no right, there can be no constitutional duty to act; absent a duty,
   proximate causation becomes irrelevant. However, the converse
   does not follow; even where a general harm seems indirect or re-
   mote, courts may find a constitutional deprivation that is actiona-
   ble under section 1983. Thus, the courts create two possible
   problems when they rely on causation to define actionable state
   (sheriff breached his duty to ascertain the authority on which a prisoner was detained when
   the plaintiff was mistakenly held in the city jail for nine months after the charges had been
   dropped), cert. denied, 396 U.S. 901 (1969).
   53 See Wright v. City of Ozark, 715 F.2d 1513 (11th Cir. 1983).
   54 See Baker v. McCollan, 443 U.S. 137, 140 (1979).
   51 See, e.g., Walker v. Rowe, 791 F.2d 507, 511 (7th Cir. 1986).
   16 See Daniels, 106 S. Ct. at 667 (“Jailers may owe a special duty of care to those in
   their custody under state tort law,. . . but for the reasons previously stated we reject the
   contention that the Due Process clause of the Fourteenth Amendment embraces such a tort
   law concept.”).
   19861 1057
   The University of Chicago Law Review
   inaction: first, reliance on an elastic proximate cause determination
   could expand section 1983 liability to constitutionalize all of tort
   law; second, courts may fail to provide adequate protection against
   indirect deprivations of constitutional rights.
   Even if the proper initial focus were on causation, the factor
   typically used by the courts to demonstrate proximate cause in
   state inaction cases-foreseeability of harm to a particular individ-
   ual-is inapposite. Contrary to the suggestion in Martinez,57 the
   absence of foreseeable harm to a particular individual does not
   necessarily show a lack of proximate causation. Under the common
   law of tort, a finding of proximate cause need not be based on a
   foreseeable harm to a particular individual.5 8 Proximate cause is,
   as Justice Andrews declared, a matter of “practical politics. 59
   Courts could reasonably decide that the foreseeability of a certain
   type of injury is more important than the foreseeability of harm to
   a particular person. Similarly, while courts might choose to impose
   liability for foreseeable harm to a particular individual, they might
   with just as much reason find a special relationship if there were
   foreseeable harm to a particular neighborhood.60 The larger the
   group to which a special duty is owed, the more it begins to resem-
   ble a duty to the public at large. Thus, causation analysis based on
   foreseeability could ultimately lead to a generalized duty of
   protection. 1
   Primary focus on causation also could lead to an underinclu-
   sive interpretation of section 1983. If courts reject claims on the
   basis of an initial analysis of causation, they may fail to recognize
   special relationships that would render even indirect causation ac-
   tionable. 2 Unless the courts examine the special relationships and
   Martinez, 444 U.S. at .285.
   See W. KEETON, D. DOBBS, R. KEETON & D. OWEN, supra note 10, § 42, at 274-75.
   Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 352, 162 N.E. 99, 103 (1928) (An-
   drews, J., dissenting).
   60 See generally Prosser, Palsgraf Revisited, 52 MICH. L. REv. 1 (1953) (discussing the
   problem of the unforeseeable plaintiff and its relation to causation and duty).
   ” The confusion that results from a failure to separate causation analysis from duty
   analysis is illustrated by the Fourth Circuit’s opinion in Fox v. Custis, 712 F.2d 84 (4th Cir.
   1983). The court recognized that both inquiries were necessary to determine liability, but
   diminished the value of this two-part inquiry by using the same standard-lack of foresee-
   ability of harm-to prove both lack of causation and lack of duty. Id. at 87-88. The court
   simply proved the same point twice. Moreover, by relying solely on the traditional tort con-
   cept of foreseeability of harm, the court failed to ground its analysis of duty in the Constitu-
   tion. Id.
   62 For example, consider Smith v. Wade, 461 U.S. 32 (1983), where the Supreme Court
   upheld liability against a prison guard for placing Wade in a cell with two other inmates
   who beat and sexually assaulted him. A Martinez-like causation analysis may have led to
   1058 [53:1048
   State Liability for Failure to Act
   constitutional rights that are at stake, their attempts to analyze
   proximate cause are premature and incomplete.
   Nor does a causation approach become less problematic if it is
   based on the well-developed principles of “state action.” These
   principles are used in several areas of constitutional law to deter-
   mine when individual action may be attributed to the state.”3 If
   there is a sufficiently close “nexus” between the private actor’s
   conduct and the state, then for constitutional purposes the state
   may be liable for the private actor’s conduct. 4 This principle
   might account for the preoccupation with causation and agency in
   some state inaction cases. Where a private third party murders a
   citizen, an in Martinez, it may seem necessary to impute the pri-
   vate party’s action to the state in order to satisfy the requirements
   of the state action doctrine. Indeed, the Supreme Court took this
   tack in Martinez. Noting that the fourteenth amendment provides
   the opposite result. Obviously, the inmates were not “agents of the [state].” Martinez, 444
   U.S. at 285. And “[t]he mere placement of plaintiff in the cell with two others would not
   have given legal sustenance to his [section 1983] claim.” Wade v. Haynes, 663 F.2d 778, 782
   (8th Cir. 1981), aff’d sub noma. Smith v. Wade, 461 U.S. 32 (1983). The key to the court’s
   resolution was its consideration of the special dependant relationship between the prison
   guard and Wade’s rights under the eighth amendment to be free from cruel and unusual
   punishment. Without considering the particulars of this special relationship and Wade’s
   vulnerablility to attack, the court might have dismissed the section 1983 action on causation
   grounds.
   63 The Civil Rights Cases, 109 U.S. 3, 17 (1883) (“[C]ivil rights, such as are guaranteed
   by the Constitution against State aggression, cannot be impaired by the wrongful acts of
   individuals, unsupported by State authority in the shape of laws, customs, or judicial or
   executive proceedings. The wrongful act of an individual, unsupported by any such author-
   ity, is simply a private wrong, or a crime of that individual.”).
   The “state action” requirement of the fourteenth amendment duplicates the “under
   color of law” requirement of section 1983. See supra note 5. The doctrine was first enunci-
   ated in The Civil Rights Cases, 109 U.S. at 11 (“It is State action of a particular character
   that is prohibited [by the first section of the fourteenth amendment]. Individual invasion of
   rights is not the subject-matter of the amendment.. . . [It] nullifies and makes void all
   State legislation, and State action of every kind, which impairs the privileges and immuni-
   ties of citizens of the United States, or which injures them in life, liberty or property with-
   out due process of law, or which denies to any of them the equal protection of the laws.”).
   ” See Burton v. Wilmington Parking Auth., 365 U.S. 715, 724 (1961) (finding the re-
   quired “nexus” where a private restauranteur leased space from a municipal parking author-
   ity and the restauranteur and parking authority conferred a wide variety of mutual benefits
   on each other so that the state could be said to profit from the discrimination). If the pri-
   vate entity performs a traditional “public function,” such as running primary elections that
   effectively determine the outcome of the official election, see Terry v. Adams, 345 U.S. 461
   (1953); Smith v. Allwright, 321 U.S. 649 (1944), or operating a private “company town” that
   has all the characteristics of an ordinary municipality, see Marsh v. Alabama, 326 U.S. 501
   (1946), then its conduct may also be deemed state action and subjected to the proscriptions
   of the fourteenth amendment. But cf. Blum v. Yaretsky, 457 U.S. 991 (1982) (acts of private
   nursing homes that are heavily regulated and funded by the state are not state action).
   1986] 1059
   1060 The University of Chicago Law Review [53:1048
   protection only against “state” action, 5 the Court emphasized that
   because the parolee was not an agent of the state, his actions were
   not subject to constitutional scrutiny.0 6
   The focus on agency is, however, misplaced: the state was be-
   ing sued for its release of a dangerous parolee, not for a principal-
   agent relationship with the parolee. 7 The Court’s analysis also
   conflates concepts of state action and causation. The Court dis-
   avowed reliance on state tort law, yet emphasized two fac-
   tors-lapse of time and foreseeability of harm-that are typical of
   tort causation anaysis 6e
   Moreover, this approach, like any that emphasizes causation,
   skirts the question of whether the state has a constitutional obliga-
   tion to act in the first place.69 Even if the state can be said to have
   “acted,” the important question is whether the state has acted con-
   sistently with the Constitution. Unless that question is deemed
   controlling, any state action that results in harm would give rise to
   section 1983 liability.70 Given the breadth of the states’ regulatory
   capabilities, a causal connection between government inaction and
   private injury could be established for almost any “private” wrong.
   Yet it is inconceivable that any and all injuries caused by private
   individuals could be imputed to the state for the purposes of sec-
   tion 1983 liability.7 1
   85 444 U.S. at 284 (emphasis added).
   68 Id. at 285.
   67 See id. at 279-80.
   88 See id. at 285.
   9 In many state inaction cases, the presence of “state action” is assumed without dis-
   cussion. For example, in due process cases the state’s failure to conform to the requirements
   of procedural regularity are usually found to violate the fourteenth amendment even though
   there is no explicit finding that the failure to hold an adequate hearing constitutes “state
   action.” See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970).
   70 If a state fails, for example, to impose very stiff penalties on drunken drivers, then
   an accident victim might plausibly claim that he has been deprived of life or liberty without
   due process of law if he could show that the state’s failure to regulate drunk driving caused
   his injury.
   7′ See, e.g., Daniels v. Williams, 106 S. Ct. 662, 665 (1986) (to adopt such a position
   seems not only to trivialize, but grossly to distort the meaning and intent of the Constitu-
   tion’ “) (quoting Parratt v. Taylor, 451 U.S. 527, 545 (1981) (Stewart, J., concurring)). For
   one thing, this approach would allow federal courts to limit, through section 1983 liability, a
   state’s ability to regulate its own internal matters, a problematic result. See Gibbons v.
   Ogden, 22 U.S. (9 Wheat.) 1, 203 (1824); see also PruneYard Shopping Center v. Robbins,
   447 U.S. 74, 81 (1980) (state may exercise its police power to adopt constitutional liberties
   that are more expansive than the federal Constitution); City of New Orleans v. Dukes, 427
   U.S. 297, 303 (1976) (the states are afforded wide latitude in regulating their local economy
   under the police power as long as rational distinctions are made); Hotel & Restaurants Em-
   ployees Int’l Alliance, Local 122 v. Wisconsin Employment Relations Bd., 315 U.S. 437, 442
   (1942) (regulation of industrial relations is wholly within the state’s police power, subject
   State Liability for Failure to Act
   Causation analysis must, of course, remain a part of every sec-
   tion 1983 claim, but it should be separate from and subsequent to
   the duty inquiry.72 Only if a duty is found must the court inquire
   as to whether the state’s failure to accomplish its duty caused the
   injury in question. If the state is found to have a constitutional
   duty of protection, it cannot be held liable unless its breach of that
   duty bears some causal relation to the harm. This follows both
   from the language of section 1983 7 and from rudimentary princi-
   ples of liability; even in actions based on strict liability, causation
   must be shown.74
   B. Duty
   A tort-based special relationship that creates a duty to act is
   likewise not an adequate constitutional source for obliging the
   state to act; the constitutional underpinnings of the “special rela-
   tionship” concept as currently applied are tenuous. The Court re-
   peatedly has expressed concern that expansive constitutional du-
   ties may threaten to supplant traditional tort law or trivialize
   constitutional provisions. 5 Thus, the notion that the relationship
   only to federal constitutional restrictions).
   It should be noted that the state action doctrine limits only the ability of the federal
   courts to usurp the state’s police power by regulating private conduct via section 1983 liabil-
   ity. Congress, however, may have the authority to regulate private conduct under section 5
   of the fourteenth amendment, which empowers it to enforce the amendment by appropriate
   legislation. U.S. CONsT. amend. XIV, § 5; see Katzenbach v. Morgan, 384 U.S. 641, 646
   (1966) (upholding section 4(e) of the Voting Rights Act of 1965 as a valid exercise of con-
   gressional authority under section 5 of the fourteenth amendment); United States v. Guest,
   383 U.S. 745, 762, 777, 779 (1966) (acknowledging Congress’s power to reach purely private
   conduct by virtue of its authority under section 5). Thus, Congress may regulate private
   conduct directly, but the courts, without congressional authorization, may not.
   Because Congress may reach discriminatory conduct directly via section 5, one might
   conclude that section 1983, as an enactment of Congress, delegates to the courts the author-
   ity to reach purely private conduct. However, the Court has recognized that Congress alone
   was given this special authority to enforce the amendment. See, e.g., Katzenbach, 384 U.S.
   at 648. To interpret section 1983 so that it reaches purely private conduct would give the
   courts the authority to “amplify prohibitions of the Constitution,” an authority that cannot
   be found even on the broadest reading of the cases construing section 5. See Frantz, Con-
   gressionalPower to Enforce the Fourteenth Amendment Against Private Acts, 73 YALE LJ.
   1353, 1356-57 (1960).
   72 See Eaton, Causation in Constitutional Torts, 67 IOWA L. REv. 443, 479 (1982)
   (“Resolving the threshold question of duty in terms of causation can only confuse both is-
   sues. [Courts should] recognize the distinction between duty and causation and analyze each
   in its own terms.”).
   7 42 U.S.C. § 1983 (1982) (“subjects or causes to be subjected. . . to the deprivation
   of any rights, privileges, or immunities secured by the Constitution and laws”).
   74 See W. KEEroN, D. DoBBs, R. KEETON & D. OWEN, supra note 10, § 79.
   75 See, e.g., Danieis v. Williams, 106 S. Ct. 662, 666 (1986) (“Our Constitution deals
   1986] 1061
   The University of Chicago Law Review
   between the state and the victim or perpetrator of an injury can
   give rise to a constitutional duty must be grounded in the Consti-
   tution itself.
   Some courts have attempted to provide a constitutional
   framework for the emphasis on special relationships in state inac-
   tion cases by drawing an analogy to Estelle, a case brought by a
   prisoner. State inaction in a prison environment may violate the
   eighth amendment because the state has a duty not to impose
   cruel and unusual punishment. The “special relationship” between
   the prisoner and the state, that of prisoner and jailer, is important
   because it activates a constitutional prohibition that is otherwise
   inapplicable. 7 But eighth amendment analysis is not easily trans-
   lated to fourteenth amendment cases outside the prison context;
   the eighth amendment has no force in relationships between the
   .state and nonprisoners. 7 7
   Nevertheless, some state inaction cases derived from Estelle
   point to “fairness” as dictating that where a state has taken ag-
   gressive action that reduces an individual’s ability to help herself,
   the state must take upon itself an affirmative duty to protect that
   individual.7 8 This analysis is also problematic. Vague notions of
   “fairness” give a result an equitable basis, not a constitutional one.
   The duty must be found in the Constitution.7 9
   Other cases have adopted a “position of danger” exception to
   the general rule that a state has no duty to act. They rely not on
   Estelle’s reference to “fairness,” but rather on the understanding
   that a state’s inaction approaches positive action when it places a
   person in jeopardy and then fails to protect her.8 0 This approach,
   however, aptly applies only to a limited number of cases. The “po-
   sition of danger” exception is properly interpreted as placing on
   state agents a duty of protection only when they or other state
   agents have jeopardized someone’s safety. 1 Otherwise the “posi-
   with the large concerns of the governors and the governed, but it does not purport to sup-
   plant traditional tort law.”); Paul v. Davis, 424 U.S. 693, 701 (1976).
   71 Estelle, 429 U.S. at 104.
   7 See Ingraham v. Wright, 430 U.S. 651, 669-70 (1977) (finding corporal punishment in
   schools beyond the reach of eighth amendment).
   71 See supra notes 35-36 and accompanying text; cf. Estelle, 429 U.S. at 104.
   79 E.g., Daniels, 106 S. Ct. at 666.
   :0 See supra notes 37-45 and accompanying text.
   I See, e.g, White v. Rochford, 592 F.2d 381, 384 (7th Cir. 1979) (police officers had a
   duty to protect minor children from immediate hazards after they arrested the children’s
   guardian); Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972) (police officers had a constitu-
   tional duty to help a person who was being beaten in their presence by other police officers).
   Some decisions have made the “position of danger” exception appear to apply in more
   1062 [53:1048
   State Liability for Failure to Act
   tion of danger” theory fails to carve out an appropriately delimited
   exception to the general rule that the state is under no duty to act.
   In theory, of course, a state could be held to place a person in a
   “position of danger” whenever it encourages her to rely on a par-
   ticular governmental service for her well-being and protection; in
   such a situation, the citizen is in a “position of danger” by virtue
   of her reliance on the government’s continued support and protec-
   tion. Courts applying this standard fail to explain why this kind of
   reliance is constitutionally irrelevant.
   Even if detrimental reliance were recognized as the basis of
   the state’s duty to protect its citizens, tort concepts of special rela-
   tionships would fail to provide the necessary constitutional foun-
   dation for the duty to be actionable under section 1983. Even the
   “position of danger” approach requires some constitutional princi-
   ples to guide the determination of when an individual’s reliance on
   the state is proper. Simple reference to the tort concept of a rea-
   sonable man, for example, might provide a ready answer to the
   problem of defining appropriate reliance, but it does not speak to
   the problem of defining constitutionalrights and duties. For that,
   one must turn to the due process clause.82
   III. STATE INACTION AS A VIOLATION OF DuE PROCESS
   The courts have struggled with the issue of imposing liability
   for state inaction because they have failed to identify any workable
   constitutional standard. But in fact the Supreme Court developed
   such a standard when it set forth the due process requirements for
   the withdrawal of statutory entitlements. Even assuming that a
   state has no obligation to provide protection in the first place, it
   may violate the due process clause when it assumes such an obliga-
   tion and then fails to fulfill it. In many inaction cases, the state has
   done just that.
   situations by citing cases which principally relied on the eighth rather than the fourteenth
   amendment. See Bowers v. Devito, 688 F.2d at 618; Ellsworth v. City of Racine, 774 F.2d at
3. 82 A constitutionalized duty under the due process clause differs from a tort duty in
   one critical respect-it requires an affirmative undertaking by the state before the obligation
   becomes effective. By contrast, a tort “special relationship” often arises simply from the
   nature of the relationship between the two parties, without any affirmative obligation ever
   being explicitly undertaken. See, e.g., Kline v. 1500 Mass. Ave. Apartment Corp., 439 F.2d
   477 (D.C. Cir. 1970) (relationship between landlord and tenant); Hutchinson v. Dickie, 162
   F.2d 103 (6th Cir. 1947) (host and guest); Stachniowicz v. Marcamy, 259 Ore. 583, 488 P.2d
   436 (1971) (bar owner and patron); Lee v. National League Baseball Club, 4 Wis. 2d 168, 89
   N.W.2d 811 (1958) (baseball team and paying spectator).
   1986] 1063
   The University of Chicago Law Review
   This section identifies the cases in which state inaction may be
   challenged under the due process clause. Under the framework
   sketched here, three considerations are relevant to inaction claims:
   whether the state has created a protected property interest; what
   kind of procedural safeguards attach to that property interest,
   given the relative interests of the state and the individual; and
   what remedy, if any, the individual is entitled to have when those
   procedures are not given. Through this framework, it is possible to
   show which kinds of inaction claims are likely to present remedia-
   ble constitutional violations.
   A. Due Process Limits to State Inaction
4. Entitlements and Reliance. In Goldberg v. Kelly,s the
   Supreme Court held that welfare recipients are entitled to eviden-
   tiary hearings before a state may terminate their benefits. The
   Court’s conclusion relied on a fundamental distinction between
   two kinds of obligations on the state: a requirement that the state
   provide welfare benefits in the first place, and the requirement
   that, once the state provides benefits of its own accord, it adminis-
   ter them fairly. Although the Court acknowledged that nothing in
   the Constitution imposes the first obligation on states, the due pro-
   cess clause does impose the second.8 4 Once a state statute promises
   benefits to a certain class of individuals, the state must comply
   with standards of due process in determining which individuals fall
   within that class.
   83 397 U.S. 254, 261 (1970).
   84 Id. at 261-62 (“Appellant does not contend that procedural due process is not appli-
   cable to the termination of welfare benefits. Such benefits are a matter of statutory entitle-
   ment for persons qualified to receive them. Their termination involves state action that
   adjudicates important rights. The constitutional challenge cannot be answered by an argu-
   ment that public assistance benefits are ‘a “privilege” and not a “right”.’ “) (quoting Sha-
   piro v. Thompson, 394 U.S. 618, 627 n.6 (1969)) (footnotes and citations omitted); see also
   Reich, The New Property, 73 YALE. L.J. 733 (1964).
   Some scholars argue that states may have a duty to provide certain benefits in the first
   instance. See, e.g., Michelnan, Foreword: On Protecting the Poor Through the Fourteenth
   Amendment, 83 HARv. L. REv. 7 (1969); Miller, Toward a Concept of ConstitutionalDuty,
   1968 Sup. CT. REv. 198. And some of the Supreme Court’s decisions might be read to sup-
   port that position. See, e.g., Truax v. Corrigan, 257 U.S. 312, 327-28 (1921) (state must
   provide injunctive remedy for labor picketing); Bronson v. Kinzie, 42 U.S. (1 How.) 311, 320
   (1843) (state cannot erase foreclosure rights of mortgagee by denying him an adequate con-
   tractual remedy). But cf. San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973)
   (rejecting claim that plaintiffs have a constitutional right to education). This comment
   neither considers nor relies upon such an interpretation of the Court’s cases. For a thorough
   discussion of many such cases, see Currie, Positive and Negative Constitutional Rights, 53
   U. CHL L. REv. 864 (1986).
   1064 [53:1048
   State Liability for Failure to Act
   According to the Court, the extent of the due process protec-
   tion that is available depends on two things: the nature of the enti-
   tlement claimed and the interests of both the state and the indi-
   vidual in accuracy-enhancing procedures. The nature of the
   entitlement is important because the due process clause affords
   protection only to entitlements that can be considered “property”
   interests. An “abstract need or desire,” the Court said, does not
   constitute property.8 5 Instead, property interests “are created…
   by existing rules or understandings that stem from an independent
   source such as state law-rules or understandings that secure cer-
   tain benefits and that support claims of entitlement to those bene-
   fits.”, 6 Hence, due process safeguards do not exist to protect bene-
   fits for their own sake, but rather to protect the expectation a state
   creates by making promises on which individuals rely; in short, the
   Court has held that a state acts unfairly when it arbitrarily goes
   back on its promises.
   Because the due process clause defines “property” in light of
   the expectation created by the state, and not according to the
   quality of the entitlement, property interests may exist in promises
   to provide services that would not be considered property in a
   more traditional sense of the term. For example, the Supreme
   Court has held that individuals have property for due process pur-
   poses in a driver’s license, public education, or even a cause of ac-
   tion itself, where state law specifies that such benefits will be con-
   ferred on certain classes of persons.88
   For different “property” interests, however, due process may
   impose different procedural requirements. The degree of protec-
   tion that is required in any given case depends on three factors:
   the magnitude of the individual’s interest, the risk of an inaccurate
   decision if a procedure is not provided, and the state’s interest in
   withholding the procedure because of the expenditures it would re-
   quire. 9 Due process requires additional procedures when the costs
   85 Board of Regents v. Roth, 408 U.S. 564, 577 (1972).
   86 Id.
   1, Id. (the institution of property, and thus the importance of due process, is “to pro-
   tect those claims upon which people rely in their daily lives”).
   ,8See Bell v. Burson, 402 U.S. 535, 539 (1971) (driver’s license); Goss v. Lopez, 419
   U.S. 565, 573 (1975) (public school); Logan v. Zimmerman Brush Co., 455 U.S. 422, 437
   (1982) (statutory right to timely hearing).
   “‘ See Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see also Morrissey v. Brewer, 408
   U.S. 471 (1972) (parolees may not be reincarcerated without a hearing); Fuentes v. Shevin,
   407 U.S. 67 (1972) (the state may not seize property that is in one person’s possession upon
   application of another person without first providing a hearing); Sniadach v. Family Finance
   Corp., 395 U.S. 337 (1969) (debtors are entitled to a hearing before private creditors can
   1986] 1065
   The University of Chicago Law Review
   of inaccuracy to the individual outweigh the state’s interest in
   summary adjudication. In Goldberg,for example, the consequences
   of an inaccurate termination of subsistence benefits were so large
   that the Court required “some kind of hearing” before
   termination.9 0
5. Inaction As Withdrawal of an Entitlement. Many inac-
   tion cases present the same kind of due process concerns identified
   by the Court in Goldberg. In both inaction cases and entitlement
   cases, the state has promised to provide a benefit, thereby inducing
   reliance by its citizens. And in both cases the government has
   withheld the benefit from a particular individual without first de-
   termining in an appropriate manner whether the individual falls
   outside the class of people who are entitled to the benefit under
   state law. Analytically, Goldberg-like entitlement cases and state
   inaction cases are identical; the constitutional safeguards required
   in the former should be provided in the latter. 1
   A Goldberg due process approach will add analytical clarity to
   inaction cases. First of all, it frees courts from dependence on un-
   helpful tort principles. State liability for inaction will be consid-
   ered as a matter of articulable standards in state law, not accord-
   ing to perplexing notions of “duty” or “proximate cause.”
   Second, by grounding liability for inaction in the due process
   clause, this approach does not construe the Constitution to impose
   positive obligations on states. As in Goldberg, the question is not
   enlist the state’s help in taking possession o their property); Sherbert v. Verner, 374 U.S.
   398 (1963) (disqualification or unemployment compensation requires a hearing); Speiser v
   Randall, 357 U.S. 513 (1958) (denial o! a tax exemption requires a hearing).
   90 Parratt v. Taylor, 451 U.S. 527, 540 (1981).
   91 The liberty interest protected by the fourteenth amendment will not, standing alone,
   afford a constitutional basis for recovery under section 1983 when the claim is grounded on
   the state’s inaction. An individual’s right to freedom from bodily restraint or harm is cer-
   tainly a “liberty.” See Board of Regents v. Roth, 408 U.S. 514, 573 (1972) (quoting Meyer v.
   Nebraska, 262 U.S. 390, 399 (1923)). However, in most instances the “state action” doctrine
   will preclude recovery from a state for an injury of this nature inflicted by a third party.
   Take, for example, the victim of a random mugging on a city street. Clearly, the victim
   has been deprived of his liberty interest in freedom from bodily restraint. But here there is
   no state action that precedes the injury. This state of affairs contrasts sharply with the
   “property” context, where the state has previously acted by conferring a benefit. There the
   state’s refusal to act to prevent the withdrawal of benefits becomes culpable precisely be-
   cause of its original action.
   One might further argue, however, that the state has performed an act antecedent to
   the mugging; it has, after all, provided a police force. But then the inquiry into the liberty
   interest collapses back into an analysis of the property interest. The proper questions to be
   asked are whether a state has limited its discretion by making a promise of services or of
   protection and whether the state has withdrawn the benefits of such a promise without due
   process of law. See infra notes 90-99 and accompanying text.
   1066 [53:1048
   State Liability for Failure to Act
   whether government benefits are constitutionally required in the
   first instance, but under what circumstances those benefits, once
   conferred, may be constitutionally withdrawn. On this view, the
   “greater” power to deny all benefits does not include the “lesser”
   power to withdraw benefits arbitrarily. Likewise, under a due pro-
   cess approach the Seventh Circuit’s defense of inaction has no
   force; the state’s failure to follow through on its promises is funda-
   mentally different from the failure to act when no promise was
   made.
   92
   B. Applications
   Under Goldberg’s due process framework, the question of
   whether any given instance of state inaction violates the Constitu-
   tion depends first on whether the plaintiff had a property interest
   in the state’s promised action. If the plaintiff claims a legitimate
   property interest, the court must determine whether state proce-
   dures were inadequate. If a due process violation is established, the
   court must then determine what remedy is appropriate.93
   9 In Goss, 419 U.S. at 574, the Court rejected dicta from the plurality opinion in Ar-
   nett v. Kennedy, 416 U.S. 134, 154 (1974), which suggested that plaintiffs whose statutory
   benefits are cut off without due process “must take the bitter with the sweet.” Instead of
   adopting the rationale offered by the Arnett plurality, that a “grant of a substantive right is
   inextricably intertwined with the limitations on the procedures” laid out in a statute, id. at
   153, the majority in Goss held that statutory entitlements may not be withdrawn “absent
   fundamentally fair procedures to determine [the grounds for termination],” 419 U.S. at 574.
   9 It might be argued, incorrectly, that a section 1983 suit in federal court cannot be a
   proper remedy for the state’s alleged violation of the individual’s due process rights as long
   as the state provides an adequate postdeprivation remedy. In Parratt v. Taylor, 451 U.S. 527
   (1981), for example, the Supreme Court held that a state official’s negligent deprivation of
   an individual’s property might be actionable under section 1983, but only where the state
   did not provide an adequate postdeprivation remedy. The case involved only a hobby kit
   worth about 23 dollars, and accordingly it has been interpreted by some lower courts to
   apply only to insignificant claims. See, e.g., Gilmere v. City of Atlanta, 774 F.2d 1495, 1498
   n.3 (11th Cir. 1985) (en banc).
   It would be very difficult, moreover, to read such a bar into section 1983. The purpose
   of that provision was to provide a federal cause of action and a federal forum for citizens
   who suffer a “deprivation” of their constitutional rights. 42 U.S.C. § 1983. It is irrelevant to
   this purpose whether the states may provide some form of alternative remedy; the statute
   grants plaintiffs access to a federal forum in which to bring their claims if they choose to
   avail themselves of it. The same holds true for due process claims in particular; the only new
   element involved in these claims is the separate determination of what process is “due” or
   adequate to prevent a constitutional violation altogether. Where the section 1983 claim is
   grounded on state conduct that was more egregious than mere negligence, and where
   predeprivation procedural protections are practicable, see infra note 99; see also infra text
   following note 98, postdeprivation remedies can no longer be considered adequate absent
   some exigency, see Parratt,451 U.S. at 537-41. See also Monaghan, State Law Wrongs,
   State Law Remedies, and the Fourteenth Amendment, 86 COLUM. L. REv. 979, 988-89
   (1986) (noting that Parattheld that postdeprivation procedures are constitutionally rele-
   1986] 1067
   The University of Chicago Law Review
6. Property in Promised Action. The inaction cases discussed
   in Part I provide good examples of the kinds of property interests
   that may arise from government promises. Under some state stat-
   utes, for example, foster agencies are directed to place foster chil-
   dren in safe, adequate homes and to ensure that the homes con-
   tinue to be safe. 94 Foster children benefit from such statutes, and,
   in a sense, rely on the state’s promise to provide continuing protec-
   tion. When the state deprives an individual foster child of this pro-
   tection by failing to monitor the foster home’s safety, the child
   may claim that she has been deprived of property. Moreover, any
   child may benefit from a statute that creates agencies to report
   and prevent cases of child abuse;9 5 if the state fails to carry out the
   statutory directives, a child may be deprived of her property inter-
   est in this protection. Similarly, a tenant in public housing receives
   benefits from a statutory or administrative command that build-
   ings be maintained safely; 96 the tenant may be deprived of a prop-
   erty interest when such protection is withdrawn.
   Whether direct or implied, the state’s promise itself usually
   limits the property interest it creates. For example, an informant
   may agree to give testimony for the state in exchange for the
   vant only where predeprivation procedures are infeasible). In such circumstances, a plaintiff
   has been deprived of property without due process of law, and it does not matter whether it
   is conceivable that the state might later restore the property on its own initiative; the depri-
   vation without due process serves as the basis for the federal cause of action. Cf. Daniels,
   106 S. Ct. at 664-66 (holding that a section 1983 claim based on an alleged due process
   violation cannot be grounded on mere negligence because such conduct does not amount to
   a “deprivation”).
   In addition, it should be noted that the vitality of Parrattis in question insofar as the
   Court’s most recent § 1983 decisions ignored the issue of postdeprivation remedies to focus
   instead on actionable states of mind. See Daniels, 106 S. Ct. 662 (overruling Parrattto the
   extent that mere negligent conduct had been deemed sufficient to violate the due process
   clause); see also Davidson v. Cannon, 106 S. Ct. 668 (1986).
   94 See Doe v. New York City Dep’t of Social Servs., 709 F.2d 782, 791 (2d Cir.) (New
   York’s Social Service Law requires social workers to report all suspected child abuse to the
   State Department of Social Services), cert. denied, 464 U.S. 864 (1983).
   95 See Jensen v. Conrad, 747 F.2d 184, 185, 188 (4th Cir. 1984) (South Carolina’s Pro-
   tection Act imposes upon the State Department of Social Services a duty to coordinate child
   protection services throughout the state), cert. denied, 105 S. Ct. 1754 (1985); cf. Estate of
   Bailey v. County of York, 768 F.2d 503, 505 (3d Cir. 1985) (York County Children and
   Youth Services is authorized under Pennsylvania’s Child Protective Services Law to seek
   judicial determination of the need to place an abused child in protective custody and to
   appoint a guardian ad litem for the child). But cf. Taylor v. Ledbetter, 791 F.2d 881, 882
   (11th Cir. 1986) (finding no substantive interest protected by the Constitution where the
   state only provided that certain procedural guidelines were to be followed in reaching deci-
   sions about benefits to particular children).
   96 See P.L.C. v. Housing Auth., 588 F. Supp. 961, 964 (W.D. Pa. 1984) (federal housing
   authority law declares provision of safe and clean housing to the poor as purpose of the
   statute).
   1068 [53:1048
   1986] State Liability for Failure to Act 1069
   state’s promise of protection. Such a promise can create a property
   entitlement even though it is individualized and does not confer
   the benefit upon a more general class of persons. But the state may
   promise very limited protection, for example for only eight hours a
   day.9 7 Since no property right in protection is created during other
   periods, any injury that occurs at those times does not result from
   deprivation of “property.”
   Some inaction cases involve government benefits that do not
   rise to the level of property interests. Property interests in govern-
   ment benefits are created by statutes limiting the discretion of
   government officials, statutes which dictate that benefits be given
   once it is found that a particular individual falls within the desig-
   nated class of beneficiaries. Laws creating police forces, for exam-
   ple, do not limit discretion in this way. They do not specify a par-
   ticular class of citizens that is to benefit specially from police
   protection, nor do they limit the state’s discretion in deciding
   when to provide such protection; rather, such laws are designed to
   provide protection on a general basis and not to any particular in-
   dividual or classYs This kind of statute does not create a property
   WEllsworth v. City of Racine, 774 F.2d 182, 183 (7th Cir. 1985). The Seventh Circuit
   rejected the claim entirely, see id. at 186, instead of looking at the specific terms of the
   state’s promise.
   9S See Stewart and Sunstein, Public Programs and Private Rights, 95 HARV. L. REV.
   1195, 1271-75 (1982) (discussing refusal of courts to recognize private rights to regulatory
   benefits in the context of administrative law).
   This point should not be confused with the principle that due process does not require
   a hearing where the state action affects a large number of citizens or the community as a
   whole, whose complaints may be more properly addressed through the political process. See
   Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 445-46 (1915); cf.
   Londoner v. City of Denver, 210 U.S. 373, 385-86 (1908) (requiring a hearing where the
   property rights of a small number of citizens were affected by the state’s action and where
   the issues relevant to the government’s decision would be resolved by considering individu-
   alized facts). The view that individualized hearings enhance the accuracy of factual determi-
   nations only when the facts at stake are particularized or not wholly generalizable also
   serves as the rationale for the distinction that is made in administrative law between legisla-
   tive and adjudicative facts. See 1 KENNETH DAvIs, ADMINISTRATiVE LAw TREAT SE § 7.02
   (1958).
   In Bi-Metallic, the existence of a traditional property right was unquestioned; the state
   sought to increase the valuation of a taxable property in Denver and to increase taxes on
   that basis. 239 U.S. at 443. The only issue was whether an individualized hearing was neces-
   sary in order adequately to protect that interest. In state inaction cases involving general
   government protections, on the other hand, individuals cannot even make out a claim that
   they have a property interest in the protection. In sum, in Bi-Metallic cases, no hearing is
   required because the political process provides all the process that is due; in state inaction
   cases complaining of inadequate police protection, no hearing is required because police pro-
   tection does not constitute “property.”
   Bi-Metallic and state inaction cases involving benefits conferred on the public at large
   are similar in one respect. Both direct the litigants’complaints to the political process. While
   The University of Chicago Law Review
   interest for a particular individual that could be invoked in a sec-
   tion 1983 case.
7. Procedural Protections Before Inaction. Although the
   property interests created by state law may be extensive, not all of
   them carry broad procedural protections. As Goldberg teaches, in
   an inaction case the question is whether the withdrawal of services
   was accompanied by procedures that were sufficient to ensure con-
   sistency with state law. In other words, given the relative interests
   of the state and the individual, did the state adequately consider
   whether the individual fell outside the class of persons who are en-
   titled to protection under state law?
   From an individual’s perspective, inaction by the state often
   threatens to injure individuals at least as severely as did the with-
   drawal of benefits in Goldberg. For example, a foster child de-
   prived of adequate supervision may face grave injury or death.
   Hence, barring a significant state interest in summary adjudica-
   tion, some type of Goldberg procedures would have to precede dep-
   rivation of this service.
   The state may, of course, be completely unable to provide
   predeprivation procedures where the deprivation results from neg-
   ligence by its agents. Where a promised benefit is denied inadver-
   tently, the need for accuracy-enhancing procedures simply cannot
   be predicted. Nor would such procedures be at all meaningful,
   since the state is not really “deciding” that the individual falls
   outside the class of protected persons. According to this theory,
   therefore, negligent inaction by the state should not trigger liabil-
   ity under section 1983; for due process to attach, the state or its
   agent must act either intentionally or recklessly to withdraw
   protection.”
   some might question the harshness of this result, one can only reply that greater sensitivity
   cannot be found in the Constitution. See Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.
   1982) (“it is monstrous if the state fails to protect its residents. . . but it does not violate
   the due process clause of the fourteenth amendment”). The extent of the state effort to
   provide protection to its citizens-how much, for example, to spend on the police force-will
   remain, ultimately, a question to be resolved by the political process. Imposing such duties
   upon the states as a constitutional matter, where they have not imposed them on them-
   selves, is not within the powers of the courts.
   99 This conclusion is in harmony with the result reached in the two most recent Su-
   preme Court decisions in this area. See Davidson v. Cannon, 106 S. Ct. 668, 670 (1986);
   Daniels v. Williams, 106 S. Ct. 662, 663 (1986).
   It is also extremely important to differentiate between the state’s intentional or reckless
   withdrawal of promised protections and intentional or reckless actions by state agents that
   in themselves amount to constitutional deprivations. It will typically be much more difficult
   for the state to prevent the latter from occurring than to prevent the former. For example,
   in Hudson v. Palmer, 104 S. Ct. 3194 (1984), prison guards were alleged to have intention-
   1070 [53:1048
   State Liability for Failure to Act
   Even where the balance of interests favors some procedural
   protections, the protections required may look quite different from
   the evidentiary hearing ordered in Goldberg. Often it will be quite
   easy to determine whether an individual falls within the class of
   persons who are entitled to rely on the state’s self-imposed obliga-
   tion to act; for example, it is easy to identify foster children who
   have been explicitly granted certain kinds of protection by the
   state. Since such a decision does not involve factual determinations
   that are best made in a full hearing, a state need only provide
   enough procedure to make the decision reasonably accurate. At the
   same time, if the correct decision is plain, evidence that the state
   incorrectly decided it will probably suffice to show that the proce-
   dures were inadequate. Moreover, in the state inaction cases prin-
   cipally discussed in this comment, the complaint is not simply that
   the state provides inadequate procedures, but that it provides no
   procedural protection at all.
8. Remedy. In most inaction cases, the plaintiff seeks com-
   pensation for all injuries “caused” by the state’s failure to act.
   Where the state’s obligation under section 1983 is determined by
   tort principles, this remedy is uncomplicated; the state will be lia-
   ble to the same extent as any tortfeasor. Basing the claim on due
   process, however, implies a somewhat different remedial approach.
   In tort law, the state would be fully liable because it had a duty to
   prevent the injury itself; under the due process clause, the state is
   obliged only to provide procedures that might have prevented the
   injury by affording state protection.
   In most cases, the two approaches will lead to the same rem-
   edy. For the purposes of money damages, section 1983 makes the
   state liable for the consequences of the constitutional depriva-
   tion. 10 0 Where procedures would have resulted in the state confer-
   ring the benefit it promised, the state is liable to the full extent of
   ally seized and destroyed property belonging to a prisoner. Confronted with an action under
   § 1983, the Court held that state postdeprivation procedures were adequate to redress the
   harm, resting largely on its judgment that the state, which could not predict the random
   intentional acts of its agents, had no way to afford meaningful predeprivation procedures to
   avoid the harm. Id. at 3203 (“Whether an individual employee is able to foresee a depriva-
   tion is simply of no consequence. The controlling inquiry is solely whether the State is in a
   position to provide for predeprivation process.”). In contrast, the state usually will find it
   relatively easy to provide enough procedures to determine whether an individual is entitled
   to promised protections before they are withdrawn; this determination often can be made
   simply as a matter of following minimal and established procedures.
   100 See 42 U.S.C. § 1983 (1982) (making the injuring party liable “for redress”); Carey
   v. Piphus, 435 U.S. 247, 257 (1978) (“damage awards under § 1983 should be governed by
   the principles of compensation”).
   19861 1071
   The University of Chicago Law Review
   the injury that would have been prevented. For example, a foster
   child who would have been saved from abuse had the state ade-
   quately considered its decision to withdraw promised protection
   would be able to recover for all injuries resulting from the abuse.
   Recovery may be denied for lack of causation in due process
   cases, just as in tort cases. Often the property deprived-the
   state’s protection-would not have prevented the injury. This will
   be true where the individual did not in fact rely on the state’s
   promise. Although there may be injury even where the plaintiff did
   not expect the state’s protection, the injury is not a consequence of
   the state’s failure to provide due process.
   This limitation presents no obstacle where reliance is obvious.
   For example, foster children brought within the state’s protection
   involuntarily have no choice but to rely on the state’s promise.
   They cannot seek outside help or protection. But where the indi-
   vidual’s reliance on the government is not involuntary, it may be
   less than certain whether the injury resulted from the individual’s
   expectation of protection. For example, a state’s practice of report-
   ing crime to its citizens might create a property interest in being
   made aware of dangerous areas. 10 1 Where the government deliber-
   ately withholds such information, and a citizen is assaulted, the
   citizen may have been deprived of property without adequate pro-
   cedures. But since the deprivation of the property interest must
   cause the injury in question, the injured citizen must prove that
   she in fact relied upon police reports and altered her conduct ac-
   cordingly. If the individual did not expect the state’s protection,
   her injury did not result from loss of a property interest within the
   meaning of due process.10 2
   CONCLUSION
   A close analysis of state inaction claims under section 1983
   shows why the approaches taken by most courts are incorrect or
   superficial. Courts that look to tort concepts like causation and
   duty fail to articulate any constitutional standard for state liabil-
   ity. Courts that hold that the Constitution never requires states to
   provide affirmative protections ignore due process limitations on
   the withdrawal of promised entitlements. A due process approach
   changes the analysis of such claims significantly. The questions be-
   101See Wright v. City of Ozark, 715 F.2d 1513, 1514 (11th Cir. 1983).
   102 At a minimum, however, the injured citizen should be afforded an opportunity to
   demonstrate this reliance-the summary disposition that is currently typical for such claims
   is wholly inappropriate. See, e.g., id.
   [53:10481072
   State Liability for Failure to Act
   come whether the plaintiff can show a property entitlement arising
   from his reliance on a promise by the state, and whether the state
   provided adequate procedural protections to justify inaction that
   injured the plaintiff by depriving him of that property.
   This approach makes it possible to draw distinctions between
   different kinds of inaction claims that have caused the most diffi-
   culty for the courts. For example, foster children who were denied
   adequate supervision by the state may have promising due process
   claims that entitle them to money damages under section 1983.
   Many such children will be able to show actual reliance on a clear
   statutory promise, and the property interest created therein more
   than outweighs the costs of procedural safeguards necessary to
   protect against its improper deprivation. Other claims, like those
   of tenants injured in public housing, will be more difficult to prove.
   These plaintiffs will have to present evidence of actual reliance on
   an explicit state promise of protection. Finally, some broader inac-
   tion claims will fail to state a cause of action under section 1983,
   such as when the plaintiff demands a benefit that has not been
   given in a manner that limits the state’s discretion. Under this ap-
   proach, a state will not be liable for every instance of inaction. But
   when the state by its inaction has broken its own promise, it may
   not escape liability by invoking an artificial distinction between ac-
   tion and inaction.
   Lisa E. Heinzerling
   19861 1073