Beware of the Dangers of the State-Created Danger Doctrine: A Look at the Ninth Circuit's Approach

The Fourteenth Amendment applies to state, not private, actors. It, like the whole of our Constitution, operates as a negative restraint on government. The Due Process Clause thus forbids states from taking certain action—but it does not and cannot compel the state to act ab initio. These core concepts formed the basis of the Supreme Court’s decision in DeShaney v. Winnebago County, where the Court reaffirmed that the only instance where the state assumes an affirmative duty to provide safety and security is when the state itself restrains an individual from protecting themselves. Yet, since DeShaney, the circuit courts have sharply divided over whether the Court impliedly recognized a second category of liability: the so-called state-created danger doctrine. The circuits have either rejected the theory outright, accepted it in name only, accepted and applied it sparingly, or accepted and applied it to increasingly attenuated circumstances of state involvement. The Ninth Circuit stands alone in the last category. Because the state-created danger doctrine stands on such uncertain constitutional footing, is applied wildly inconsistently across circuits, and substitutes judicial review for judicial governance, the Ninth Circuit is wrong to continually broaden its reach and the Supreme Court should course correct.