DeShaney v. Winnebago County Department of Social Services

DeShaney v. Winnebago County Department of Social Services

 Does a state’s failure to protect someone against private violence constitute as an infringement of the Due Process Clause of the Fourteenth Amendment?

Argued: 11/2/1988

Decision Date: 02/22/1989

Decision Record: 6-3; no

Justices in Favor: William Rehnquist, Byron White, John Paul Stevens, Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy

Justices Dissenting: William Brennan, Thurgood Marshall, Harry Blackmun

Effect of the Decision

This case ruled that a social service’s failure to protect an individual from one’s parent is not a violation of the Fourteenth Amendment.

In Favor

In the favoring side of this case, on the side of the DeShaney, attorney Donald James Sullivan argued, “We do suggest that there is one and only one exquisitely narrow circumstance where there is an affirmative duty.

I would suggest that there are two primary elements to the one and only one circumstance for which we argue.

The first is the existence of a child/parent relationship.

The other is what I term enmeshment, intricate intimacy, enmeshment of the agents of the state in a particular circumstance which would have three characteristics: the first, an extreme danger to a particular individual child; the second, abundant actual knowledge on the part of the agents of the state; and the third, an actual undertaking by the state to protect the child.”


In the opposition, on the side of Winnebago County Department of Social Services, attorney Mark J. Mingo, “We believe this case involves an attempt by the Petitioners to transform the private wrongdoing of a natural father into state action for purposes of invoking the Fourteenth Amendment.

The primary issue presented is whether a county’s failure to prevent the infliction of harm by a third party upon a person at liberty constitutes a due process violation of the Fourteenth Amendment.

We believe that there was no state deprivation of a constitutionally protected right for three main reasons.

First, the Fourteenth Amendment’s concept of liberty does not include a right to basic protective services from the state.

Secondly, there is no state action in a constitutional sense which caused a deprivation in this case.

Third, we believe that the actions of the social worker did not evince the state of mind necessary to invoke the Fourteenth Amendment.

In addition, we believe that there are two independent reasons for urging affirmance of the Seventh Circuit’s decision.

First, with respect to the municipal Respondents, there was no policy or custom which led to a deprivation and with respect to the individual Respondents, we believe they are clearly entitled to the defense of qualified immunity.”


On the majority side, also the affirming side, Justice Rehnquist wrote the opinion. He wrote, “Judges and lawyers, like other humans, are moved by natural sympathy in a case like this to find a way for Joshua and his mother to receive adequate compensation for the grievous harm inflicted upon them. But before yielding to that impulse, it is well to remember once again that the harm was inflicted not by the State of Wisconsin, but by Joshua’s father. The most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them. In defense of them, it must also be said that, had they moved too soon to take custody of the son away from the father, they would likely have been met with charges of improperly intruding into the parent-child relationship, charges based on the same Due Process Clause that forms the basis for the present charge of failure to provide adequate protection.

The people of Wisconsin may well prefer a system of liability which would place upon the State and its officials the responsibility for failure to act in situations such as the present one. They may create such a system, if they do not have it already, by changing the tort law of the State in accordance with the regular lawmaking process. But they should not have it thrust upon them by this Court’s expansion of the Due Process Clause of the Fourteenth Amendment.”

In the side of the opposition, Justice Brennan wrote the opinion. He wrote, “My disagreement with the Court arises from its failure to see that inaction can be every bit as abusive of power as action, that oppression can result when a State undertakes a vital duty and then ignores it. Today’s opinion construes the Due Process Clause to permit a State to displace private sources of protection and then, at the critical moment, to shrug its shoulders and turn away from the harm that it has promised to try to prevent. Because I cannot agree that our Constitution is indifferent to such indifference, I respectfully dissent.”

My Opinion:

In this case, I agree with the majority. Many people would dissent from sympathy of this certain situation. However, looking at the Fourteenth Amendment, which guarantees equal protection, does not have much to do with this case. The social service not taking the father from the son can not be considered a violation of the Fourteenth Amendment. The Constitution does not require the service to take an abusive father away from a son. The abuse was inflicted by the parent, not the service or the state of Wisconsin itself. States could create their own law regarding a predicament such as this one, but as of now, no violation of the Constitution has occurred.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

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