County Officials Sued by Murder Victim's Family

believe in magic). for in both classes of case the victim is right--not even claimed in this case--there could be no monfils was safe (or at least much safer) before the his prosecutorial discretion not to order moore arrested must by its "affirmative acts . . . create or increase" the of releasing the tape the police created the mortal danger ecutor, and he had decided in a misguided exercise of while he was on work release that he committed the vanderburgh county, et al., castle rock. although the supreme court as we said to anyone because the thief was a violent person who crashed and burst into flames. a policeman arrived no. 08-1540 ment a constitutional license to kill you, on the ground that have been unlikely to identify the informant. by the act state, by its affirmative acts, must create or increase a be released. the thief, however, requested a copy of the the two classes of case are the same, and in archie v. city apartment by a man named moore, who then killed give aid." archie v. city of racine, supra, 847 f.2d at 1222. that "it is certainly a plausible explanation for these tragic defensive, or having stripped away avenues of self-help, due process clause"); leeke v. timmerman, 454 u.s. 83 we disapproved the use of the term "special relationship," his own. so, for example, if the state imprisons someone moore's relationship to the victims, are unclear.) the and she had complained to the sheriff's department, the protection of life, limb, and property. they would have there is a moral right to such services--protection no constitutional right to be protected by the state (1981); linda r.s. v. richard d., 410 u.s. 614, 619 (1973). individual. third, . . . the state's failure to protect the created by moore, and by moore alone; the defendants greatly increased a danger of private violence. tape from the police, and a policeman who did not 658 (7th cir. 2003); bright v. westmoreland county, 443 teenth amendment, it is difficult to see why a promise or parole should be substituted for imprisonment or a gonzales, 545 u.s. 748, 768 (2005) ("the benefit that a third the state must afford a procedure reasonably likely to another person jailed (or, in deshaney itself, to be pro- be interpreted so broadly as to erase the essential dis- right to be protected by the government against private (7th cir. 1998). monfils had tipped off the police to a thief events that moore was angry at sheena sandage-shofner other time two days before--sandage-shofner had called for calling the sheriff's department and warning them the custody of the county sheriff, for robbery. but he was the government to protect citizens from privately created seeking to blur the distinction, the plaintiffs argue, county officials, claim that the department's failure possible violation of the due process clause. our plain- no. 08-1540 11 our plaintiffs' decedents were not safe before the defen- a property right in the enforcement of restraining orders, case: 08-1540 document: 24 filed: 11/24/2008 pages: 11 case: 08-1540 document: 24 filed: 11/24/2008 pages: 11 this one, of inaction by law enforcement personnel (windle dept. of social services, 489 u.s. 189 (1989), affirming a principles that the court distilled from the case law to in both cases there is a commitment to protect, and if the indiana, responsible for telling the county's public individual must shock the conscience." 496 f.3d at 818 public from private violence, while the police in monfils is hard to see what difference there is between a statute prescribe the lighting on state streets, regulate fire depart- deprived their decedents of their lives without due no. 08-1540 3 that would have killed you, this does not give the depart- question was whether the state of colorado had created vigorous legal action the neighbors to contribute to the ing" the danger of private violence, they mean the state judicial review of law enforcement. to evaluate the monfils, moreover, may well have been superseded by ing for their attention. judge hamilton [the district nothing to restrict the victims' "avenues of self-help." prison sentence suspended, and which state prisoners "deliberate indifference" to the risk of harm that he elementary a service as maintaining law and order." see sort of defenses that the person could have provided on of racine, 847 f.2d 1211, 1223 (7th cir. 1988) (en banc), not this case; and after castle rock a broken promise--the or when it has already afforded process sufficient to to reduce the chance that the foster parents will abuse liable under section 1983. the myriad cases that hold party may receive from having someone else arrested for courts in control of sanitation in dearborn county, rejected the argument that colorado had created a right in jackson v. city of joliet, supra, the car driven by one rovner, circuit judges. result the value of the plaintiff's property had declined, we actual one, rather than that it just stood by and did government did not create, there is a duty not to harm anonymity or even that the sheriff's department told derer)--may very well not be enough. against discharging sewage into groundwater, and as a board of commissioners of plaintiff is safe. "[t]he constitution does not require cir. 1982), for example, we had said that while "there is monfils. we add only that "create or increase" must not tinction between endangering and failing to protect. if christine sandage, et al., 10 no. 08-1540 case: 08-1540 document: 24 filed: 11/24/2008 pages: 11 police and prosecutors and prisons, how police resources case: 08-1540 document: 24 filed: 11/24/2008 pages: 11 able under the constitution because he had not placed be deshaney, and the actual case before us is indis- we assume, given the procedural posture, that the all that were required was a causal relation between enforce a valid restraining order," 545 u.s. at 759, and it of harassment. (if they were merely negligent, the plaintiffs should be allowed to serve part or all of their sentences would have to decide how much money each state and a crime generally does not trigger protections under the safe before the state intervenes and unsafe afterward. this inflict harm and its duty to protect someone whom it has the opinion in king cites for the proposition that the state moore's work-release privilege and reimprisoning him determine whether the plaintiff can complain under the had been moore's child and the county welfare f.3d 276 (3d cir. 2006), and monfils--are either cases, like the third principle, as the opinion goes on to explain, is in halfway houses, at home, or on work release. the federal proof that the defendant acted (or failed to act) not which we called a "magic phrase" (and we do not to decide how much money must be appropriated for constitution is a charter of negative liberties; it tells the danger to the victim--windle v. city of marion, 321 f.3d to the enforcement of restraining orders, the colorado state and the person whom it failed to protect that created supreme court held in deshaney v. winnebago county rendered defenseless, and describe the second as a case would have no case.) the judge was nevertheless right process of law, in violation of the fourteenth amend- case: 08-1540 document: 24 filed: 11/24/2008 pages: 11 the present plaintiffs complain (though there was more v. fourteenth amendment of a failure to protect: first, "the same (and identical to castle rock) if moore had not been sheena sandage-shofner and alfonzo small, along with and charged. it would be the same case if sandage-shofner defendants-appellees. the sheriff's department to complain that moore was discovered that monfils was the informant--and killed st. louis school dist. 189, supra, not for its facts, which bear no relation to those of this case, but for the 8 no. 08-1540 quickly but failed to notice that the car was occupied, and merely failed to take any steps to reduce the danger. they the child . . . . if the state forbids private rescue of a drown- no. 3:07-cv-00049 seb-wgh--sarah evans barker, judge. should be. murders. twice--once one month before the murders, the case: 08-1540 document: 24 filed: 11/24/2008 pages: 11 would be private ones. "having put the citizen on the yield accurate decisions, it has no further obligation to the first principle is thus the key one, and its require- police released the tape, without which the thief would them. and in tuffendsam v. dearborn county board of nothing to prevent private violence. that was monfils; it is decision by this court, in which the principle was already argued october 24, 2008--decided november 24, 2008 case: 08-1540 document: 24 filed: 11/24/2008 pages: 11 against violence is the single most important function affirmed. moore might become violent if he knew that she had rendered someone helpless, the state must supply the police arrested a driver but left his child passengers which, before the police or other public authorities act, the stranded in the driverless car, thus placing them in peril for the danger. when courts speak of the state's "increas- in k.h. through murphy v. morgan, 914 f.2d 846, 849 (7th posner, circuit judge. the plaintiffs' decedents, private physicians and hospitals, then the state must case: 08-1540 document: 24 filed: 11/24/2008 pages: 11 is true even in the hypothetical case that we mentioned rescue service of its own." witkowski v. milwaukee county, government or the state to provide services, even so them in danger but had merely failed to rescue so the occupants died. we held that the policeman's courts would fix the speed limits on state highways, united states court of appeals violence in which the government is not complicit. so the illustrated by white v. rochford, 592 f.2d 381 (7th cir. 1979). danger must be the proximate cause of the injury to the ment of "affirmative acts" distinguishes our case from serving a sentence but had threatened sandage-shofner that moore was violating his work release." but they do of the plaintiff's house to abate the discharge of sewage, failed in their moral duty to protect members of the to enforce a domestic-abuse restraining order, despite takes a child from his parents and places him disables people from protecting themselves; having to act on the complaint of harassment by revoking failure to save them, even if reckless, was not action- sound, is a general requirement for relief in a tort suit of government--and a government that fails in this for the seventh circuit in the you will be no worse off than if there were no fire depart- danger. it may, however, demand protection if the state 540 f.3d 1082, 1088 n. 5 (9th cir. 2008). but functionally should be deployed across neighborhoods, the minimum though they suspected him of abusing her--that would health, 385 f.3d 1124, 1126-27 (7th cir. 2004), where the that commands enforcement and the promise not to ing man, then the state must furnish a competent plaintiffs-appellants, danger faced by an individual. second, the failure on the he repeatedly begged the police not to release the tape officer, for the state violates the fourteenth amendment refusal was not a denial of due process. the technical endanger monfils by revealing that he was the informant. plaintiffs, in this suit under 42 u.s.c. � 1983 against himself. moore had been serving a four-year sentence, in implication of positive rights from negative ones. when no. 08-1540 5 there would have been no injury. the three cases that length of state prison sentences, when if ever probation at his workplace in a phone call that the police recorded. department had referred the matter to the county pros- expense of building a sewer line, would place the federal said that "the root objection to cases of this kind, as the order was directed, and he murdered the couple's dist. 189, 496 f.3d 812, 817 (7th cir. 2007); shanks v. dressel, gravity, the unreasonableness, the gratuitousness of the part of the state to protect an individual from such a 4 no. 08-1540 to dismiss the suit. there is no federal constitutional to monfils. in this case, in contrast, the danger was statutory commitment is not enforceable under the four- 2 no. 08-1540 money among the various public health problems clamor- before easterbrook, chief judge, and posner and ment." were there no public fire departments, there case: 08-1540 document: 24 filed: 11/24/2008 pages: 11 lockhart-bembery v. sauro, 498 f.3d 69, 77 (1st cir. 2007), of the plaintiff's decedents (the other was a passenger) no. 08-1540 7 every local community would be required to allocate to health officers how to allocate their limited time and on work release, employed cleaning parking lots. it was in castle rock, a case much like this one, the police refused "a peace officer shall use every reasonable means to authorities had allowed her to remain in his custody statute that was claimed to create the right did say that moore that it was sandage-shofner who had called. nor rather than anything special to the deshaney line of cases. to protect or (as in jackson) to rescue from a peril that the and bright), so that there was no liability, or a case (monfils) well established. in bowers v. devito, 686 f.2d 616, 618 (7th a third person, were murdered in sandage-shofner's assaults by other inmates are similar. all are cases in complained. such a right would be impractical. the federal courts tected against an abusive parent). town of castle rock v. is no enforceable federal constitutional right. state to let people alone; it does not require the federal the government does not monopolize the avenues of relief, case: 08-1540 document: 24 filed: 11/24/2008 pages: 11 6 no. 08-1540 return him to custody. a dangerous person, the plaintiffs (citations omitted). the second principle, while certainly did something that turned a potential danger into an essential act of which both the plaintiff in that case and tiffs make the similar claim that the county was constitu- involuntarily with a foster family, it must take precautions in monfils--the handing over of the tape to the mur- though only in their reply brief and there only in passing, in which there is a "special relationship" between the dants failed to revoke moore's work release. they were noted by the district judge, is simply the infeasibility of argue, must not be left at large. the case would be the some cases distinguish between the state's duty not to and the court found that it had not. without such a a federal constitutional duty. e.g., king v. st. louis school duty invites well-deserved political retribution. but there a reminder that liability for a constitutional tort requires cir. 1990): "if the fire department rescues you from a fire it is true that while there's no federal constitutional duty also jackson v. city of joliet, 715 f.2d 1200 (7th cir. 1983). against being murdered by criminals or madmen . . . . the know about monfils's fears gave it to him. so the thief 11-24-08 reach an accurate conclusion even if that means the for the southern district of indiana, evansville division. merely negligently but recklessly (equivalently, with a constitutional right not to be murdered by a state case: 08-1540 document: 24 filed: 11/24/2008 pages: 11 ments, public hospitals, and paramedic services. not allege that (like monfils) their decedents requested since, had it not been for the state's inaction in deshaney, no. 08-1540 9 in danger--from moore--and the defendants had done judge] would be the dearborn county health board." ference to the medical needs of their prisoners or from 480 f.3d 511, 513 (7th cir. 2007) (citations omitted). was creating). id. at 818-20. claim was that the county had failed to enforce a law in which law enforcement personnel were responsible when its officer, acting under color of state law, deprives failure to state a claim. fed. r. civ. p. 12(b)(6). the plaintiffs also rely on our recent decision in king v. did sandage-shofner warn the sheriff's department that three children; yet the supreme court held that the would recognize his voice. he was assured it would not inaction and harm, the rule of deshaney would be undone, the plaintiffs' best case is monfils v. taylor, 165 f.3d 511 jailers liable for injuries resulting from deliberate indif- for the consequences of which the police were held him. we upheld a jury verdict for the plaintiff because appeal from the united states district court tiguishable from it. took a step--releasing the tape--that either created or and prevents him from obtaining medical care from supply medical care for serious problems. if the state repeated demands by the woman against whose husband no one has a federal constitutional right to have or of the board's failure to induce through prompt and harassing her. (the nature of the harassment, and of tionally required to revoke moore's work release and ment. the district judge dismissed the complaint for a person of life without due process of law, . . . there is county health board's failure to cause a previous owner defendants were reckless in failing to act on the complaint