The facts of this case are undeniably tragic. Petitioner Joshua
DeShaney was born in 1979.
In 1980, a Wyoming court granted his parents a divorce and
awarded custody of Joshua to his father, Randy DeShaney.
The father shortly thereafter moved to Neenah, a city located in
Winnebago County, Wisconsin, taking the infant Joshua with him.
There he entered into a second marriage, which also ended in
The Winnebago County authorities first learned that Joshua
DeShaney might be a victim of child abuse in January 1982, when
his father's second wife complained to the police, at the time
of their divorce, that he had previously "hit the boy causing
marks and [was] a prime case for child abuse.
The Winnebago County Department of Social Services (DSS)
interviewed the father, but he denied the accusations, and DSS
did not pursue them further.
In January 1983, Joshua was admitted to a local hospital with
multiple bruises and abrasions.
Retarded for Life
Eventually, the father beat him so severely that he suffered
permanent brain injuries and left him profoundly retarded and
confined to an institution for life.
Action against State
Joshuas mother claiming that the states conduct deprived him
of his liberty in violation of the due process clause of the
Forbids States to deprive Life, Liberty and Property, NOT TO
Nothing in the language of the Due Process Clause itself
requires the State to protect the life, liberty, and property of
its citizens against invasion by private actors.
The Clause is phrased as a limitation on the State's power to
act, not as a guarantee of certain
minimal levels of safety and security.
Cannot be extended to PROTECT
It forbids the State itself to deprive individuals of life,
liberty, or property without "due process of law,"
but its language cannot fairly be extended to impose an
affirmative obligation on the State to ensure that those
interests do not come to harm through other means.
Nor does history support such an expansive reading of the
Petitioners contend - protective services may arise out of
Even if the Due Process Clause imposes no affirmative obligation
on the State to provide the general public with adequate
protective services, such a
duty may arise out of certain "special relationships"
created or assumed by the State with respect to particular
- Applies when that State take custody of a person against his
But these cases afford petitioners no help.
Taken together, they stand only for the proposition that when
the State takes a person into its custody and holds him there
against his will, the Constitution imposes upon it a
corresponding duty to assume some responsibility for his safety
and general well-being.
The affirmative duty to protect arises not from the State's
knowledge of the individual's predicament or from its
expressions of intent to help him, but from the limitation which
it has imposed on his freedom to act on his own behalf.
Dissent - Justice Brennan
Wisconsin law invites -- indeed, directs -- citizens and other
governmental entities to depend on
local departments of social services such as
respondent to protect children from abuse.
Joshua was confined and DSS made him worse off
In these circumstances, a private citizen, or even a person
working in a government agency other than DSS,
would doubtless feel that her
job was done as soon as she had reported her suspicions of
child abuse to DSS.
If DSS ignores or dismisses these suspicions, no one will step
in to fill the gap.
Wisconsin's child-protection program thus effectively confined
Joshua DeShaney within the walls of Randy DeShaney's violent
home until such time as DSS took action to remove him.
Conceivably, then, children like Joshua are made worse off by
the existence of this program when the persons and entities
charged with carrying it out fail to do their jobs.