More than 2 decades ago a question was disposed off in the case of DeShaney vs. Winnebago, on whether or not the state should be held liable for the permanent disability suffered by Joshua DeShaney due to the failure of the Department of Social Services (or DSS) to remove him from his father’s custody despite repeated observations of abuse.

The court ruled that the state was not liable on 3 grounds:
1. In the first place, the state is under no obligation to provide adequate protective services to its citizens;
2. There is no affirmative duty to protect in this case that was established at par with our previous rulings, wherein it was shown that such duty arises when it is the state which deprived its citizens with the liberty to protect themselves;
3. Not all cases of torts give rise to an affirmative duty to protect (a review of the case will show that the court failed to clarify exactly when torts cases equate to an affirmative duty to protect).

The case should be reopened on at least 4 grounds:
1. To claim that the state is under no obligation to provide adequate protective services to its citizens is a violation of, not due process, but the equal protection clause. This angle was dismissed because it was not raised in this case.
But the 5th Circuit of the Court of Appeals made a ruling on this point to the effect that it should not be used as an end-run around the DeShaney principle that the constitutional right to state protection does not cover acts carried out by a private actor (Conservapedia the Trustworthy Encyclopedia, 2008). This ruling implies that the lower court was put on notice on the substance of the issue on equal protection. Based on the ruling in Nelson v. Adams (99-502) 529 U.S. 460 (2000), this is sufficient preservation of a potential ground to be decided in higher courts.

Implicit from the present ruling, the state is only obliged to protect its citizens when it is the state imposing a limitation on freedom to protect one’s self before the obligation to protect arises. But the question that needs to be addressed is whether such qualifying circumstance exists in the constitutional definition of equal protection which simply states: no State shall…deny to any person within its jurisdiction the equal protection of the laws (14th Amendment, United States Constitution). Will ignoring this other clause of the constitution not defeat the ends of justice?

2. The cases sited to support the state obligation to provide protection are not on all fours with this case. As a matter of fact, the sited cases ignore 1 crucial point: Joshua DeShaney was a child in the custody of an abusive father. The situation cannot be compared to that of a prisoner in Estelle vs. Gamble or a mental patient in Youngberg vs. Romeo who are deprived of their liberty to protect themselves therefore the state has the obligation to protect them. What these cases are justifying is the state’s inaction when it is not the reason for the citizen’s predicament. But, going back to the first point, it ignores the fact that the state has an obligation to protect every citizen within its jurisdiction;

3. The court was also wanting in response to the issue of whether or not a special relationship was created between Joshua DeShaney and the DSS when the latter came to know of the former’s plight. As pointed out by the dissenting opinions of Justices Brennan et al, the DSS took action which was an expression of their willingness to help. This show of willingness created a special duty to protect which is enforceable under the due process clause. If the court cannot agree with the dissenting Justices, then they should at least reopen the case to clarify how such actions taken by the DSS do not qualify as an assumption of control over the person of Joshua Deshaney, and that no special relationship to require protection existed. Another point which requires a clarification is how can the state start to take on a vital duty then not follow through when there is no showing that what gave rise to the vital duty to begin with continued to exist. It cannot be ignored that the DSS continued to see evidence of abuse but did nothing more than record it.

4. After so many years, it can also no longer be ignored that the 1989 ruling had staggering implications. The Colorado case of Castle Rock vs. Gonzales (04-278) 545 U.S. 748 (2005) implied that parents cannot protect their children from violations no matter how brutal. And whether parents are present or whether the children are at school, the state has no affirmative duty to help children. Parents and schools take measures to protect children because they are not in a position to protect themselves (Buchanan).

Women were also not spared from the implication of the subject decision. The rampant violence they face 1 time or another compels them to run to law enforcement for assistance. Since law enforcement has been given the freedom to respond as they please (or, to put it fastidiously, upon their discretion), these women’s complaints have had the tendency to either get brushed off or ignored. And, of course, the violence raged on. In comparison to the 2 years before the Deshaney decision was made, law enforcement officials were made liable for withholding their assistance (Does Law Enforcement Have a Duty to Victims of Violence Against Women? 8 Key Legal Cases). Maybe its time to recognize that the vulnerability of women and children make them a special class that require a greater level of protection.

If the purpose of law is to protect those who need to be protected, and make sure that those assigned to protect actually carry out what they have been assigned to do, then the Deshaney ruling has terribly failed on these 2 counts. If the Deshaney ruling was made to strictly comply with the technical requirements of due process at the expense of equal protection, then in the end it also failed to attain justice by not looking at the entire picture painted by the Constitution.


“Amendment 14 – Citizenship Rights.” The United States Constitution. Retrieved on April 10, 2011 from:

Buchanan, Betsy. “Innocence Lost and No Remedy to Be Found: A New Standard for Section 1983 Supervisory Liability in the Context of Sexual Abuse of Students in Public Schools.” (n.d.). Retrieved on April 10, 2011 from:

“Castle Rock vs. Gonzales (04-278) 545 U.S. 748 (2005).” Cornell University Law School (n.d.). Retrieved on April 9, 2011 from:

“DeShaney v. Winnebago County Dep’t of Social Servs.” Conservapedia the Trustworthy encyclopedia. (2008). Retrieved on April 9, 2011 from:’t_of_Social_Servs

“Does Law Enforcement Have a Duty to Victims of Violence Against Women? 8 Key Legal Cases.” Women’s Justice Center. (n.d.). Retrieved on April 10, 2011 from:

“Nelson v. Adams USA, INC. (99-502) 529 U.S. 460 (2000).” Cornell University Law School. (n.d.). Retrieved on April 9, 2011 from:

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