AAC


LITIGATION LESSONS Constitutional duty to protect


inmate. Because jails and prisons are inherently dangerous and this type of claim is common, the contours of the claim are well established, and governing law is clear. Jail officials have a constitutional duty to protect inmates from violence at the hands of other inmates. But jail officials do not incur constitutional liability every time an inmate is attacked by another inmate — in fact, liability is the exception rather than the rule. To establish liability, an inmate must prove two elements: (1) incarceration under conditions posing a substantial risk of serious harm, and (2) that the prison of- ficial knew about and disregarded an excessive risk to the in- mate’s health or safety. In practice, this typically means that a prison official must know that a particular inmate poses a serious risk to the safety of the attacked inmate, before the attack, and deliberately do nothing to protect the attacked inmate in advance of the attack. Properly trained jail/prison officials should take steps to keep inmates separated when officials have knowledge that the inmates are enemies. But if officials are not aware that inmates are enemies, officials can- not be held liable for failing to protect the inmates. In the free world, plaintiffs sometimes attempt to bring civil-rights claims against law enforcement for failure to protect people against private acts of violence. For example, families of victims of the Feb. 14, 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Fla., have filed dozens of lawsuits against former Broward County Sheriff’s Deputy Scot Peterson, who was on duty and assigned to the school the day of the shooting, but failed to stop the attack or take action in an attempt to stop the attack. In June, Pe- terson also was charged with 11 criminal charges, including child neglect, negligence, and perjury. But the Parkland/Pe- terson cases are extraordinary and unusual, and should not be interpreted to mean that law enforcement is liable (civilly or criminally) for private acts of violence in the free world. Although “failure to protect” claims by free-world citizens against law enforcement seem similar to “failure to protect” claims by inmates against prison officials, the governing legal standards are very different. Unlike in the prison context, outside of prison, government officials generally do not have a duty to protect people against private acts of violence — even if officials are aware of a risk of harm to citizens and fail to take action to protect against the risk. Te U.S. Supreme Court has explained that constitutional protections “generally confer no affirmative right to govern-


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ne of the more common civil-rights claims we see in the jail context is a claim that jail officials failed to protect an inmate against harm, for example, from attack by a fellow


ment aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” DeShaney v. Win- nebago County Dep’t of Social Ser- vices, 489 U.S. 189, 196 (1989). In DeShaney, Chief Justice Wil- liam Rehnquist explained that a boy who was beaten and perma- nently injured by his father could not hold government officials liable for constitutional viola- tions, even though the officials had received reliable com- plaints that the boy was being abused by his father, yet did not act to remove the boy from his father’s custody before the beating that permanently injured the boy. Te Supreme Court has reaffirmed this general rule in sub- sequent cases, including cases with tragic facts. For example, in Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005), a woman reported to police that her husband took their three children away from her in violation of a restraining order that required police to arrest him for this sort of violation. Te woman reported the abduction to police repeatedly and begged police to act. After hours of phone calls, she went to the police station and continued to request assistance, to no avail. Late in the night, her husband arrived at the police station and opened fire with a gun he had purchased earlier that evening, and was killed when police returned fire. Te bodies of all three children were found in his truck in the parking lot of the police station. While acknowledging the “horrible facts” of the case (Castle Rock, 545 U.S. at 751), the Court held that Ms. Gonzales “did not, for purposes of the Due Process Clause, have a property interest in police enforcement of the restraining order against her husband.” Castle Rock, 545 U.S. at 768. Other courts, including the Arkansas Supreme Court, have


Colin Jorgensen Risk Management Litigation Counsel


followed suit and held that the constitution does not gener- ally require law enforcement to protect citizens from private violence. In Repking v. Lokey, 2010 Ark. 356, 377 S.W.3d 211, a woman had multiple protective orders against her husband and was living at a battered women’s shelter in Fort Smith. She was alerted that her husband was attempting to remove one of their children from school. At the school, she met with a police officer who confirmed that her husband had left the school without taking the child. She left the school to return to the shelter with the police officer follow- ing her in his vehicle. After he determined that she was not being followed by her husband, the officer took a different


COUNTY LINES, SUMMER 2019


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