Police interference with person’s self-defense, when he is faced with imminent danger — plus failure to protect him against the danger — may be unconstitutional

From Vaughn v. City of Chicago (N.D. Ill. Aug. 5, 2014), the alleged facts:

At the motion to dismiss stage, I must accept as true all well-pleaded allegations in the complaint and draw all reasonable inferences in Plaintiff’s favor.

On April 5, 2008, around 11:00 pm, Albert Vaughn, Jr. … was in the vicinity of 7033 South Throop Street in Chicago, Illinois when an altercation between two groups started in the street. Vaughn left the area before the four police officers who are named as defendants in this suit arrived at the scene.

While the police officers stood between the two groups trying to disperse the crowd, Vaughn returned to the scene in search of his younger brother. Vaughn was carrying a stick to protect himself and joined one of the groups. Upon noticing Vaughn, Officer Robert Cummings drew his gun and pointed it at Vaughn. Meanwhile, the other officer defendants ordered Vaughn to drop the stick. Vaughn complied.

When a man in the opposing group began yelling obscenities at Vaughn, he picked up the stick he had brought to the scene for self-protection. The officer defendants, who were standing within a few feet of Vaughn, once again ordered him to drop the stick. Vaughn complied.

The man who had been shouting obscenities at Vaughn then made his way through the crowd carrying a metal baseball bat. The defendant officers did not order the man to halt or drop the bat as he approached Vaughn. Instead, the officers simply watched as the man clubbed Vaughn in the head with the bat and then fled from the scene. Vaughn was transported to a local hospital where he was pronounced dead.

Vaughn’s father filed the present suit in his capacity as the administrator of his son’s estate.

And the legal analysis:

“As a general matter … a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 197 (1989). “DeShaney, however, [left] the door open for liability in situations where the state creates a dangerous situation or renders citizens more vulnerable to danger.” The so-called “state-created danger” doctrine has three elements:

First, in order for the Due Process Clause to impose upon a state the duty to protect its citizens, the state, by its affirmative acts, must create or increase a danger faced by an individual.

Second, the failure on the part of the state to protect an individual from such a danger must be the proximate cause of the injury to the individual.

Third, because the right to protection against state-created dangers is derived from the substantive component of the Due Process Clause, the state’s failure to protect the individual must shock the conscience.

… “When courts speak of the state’s ‘increasing’ the danger of private violence, they mean the state did something that turned a potential danger into an actual one, rather than that it just stood by and did nothing to prevent private violence.”

Here, the complaint alleges that Defendants increased the danger facing Vaughn by ordering him, at gunpoint, to drop the stick he was carrying for self-protection. Defendants emphasize that they did not start the street altercation, force Vaughn to return to the scene, or place Vaughn’s assailant in the rival group. Defendants’ attempt to portray themselves as passive observers cannot be squared with the complaint, which plainly alleges that Defendants ordered Vaughn to drop his chosen means of self-protection during a heated altercation.

Defendants stress that Vaughn faced substantial danger — namely, the risk that a member of the rival group would attack him — with or without a stick in his hand. This argument falsely assumes that the state-created danger doctrine applies only when state actors turn a safe situation into a dangerous one. In fact, the doctrine also protects individuals against marginal increases in risk — i.e., placing someone who already faces danger in even greater peril.

At the motion to dismiss stage, Defendants are not entitled to the inference that their actions left Vaughn no worse off than when he returned to the scene with a stick in hand. It is plausible that Vaughn was safer with a stick in his hand than he was after Defendants ordered him to drop it. In simple terms, Defendants made Vaughn an easier target for would-be assailants in the rival group than he otherwise would have been. This marginal increase in risk is sufficient to state a plausible state-created danger claim.

Defendants also argue that even if they exposed Vaughn to an increased risk of private violence, they did not render him completely defenseless. After all, Defendants contend, Vaughn could have walked away from the scene after they ordered him to drop his stick. This argument resembles an assumption of risk defense that Vaughn need not overcome at the pleading stage. Moreover, the Seventh Circuit has held that “a state can be held to have violated due process by placing a person in a position of heightened danger without cutting off other avenues of aid.” …

In sum, the complaint plausibly alleges that Defendants placed Vaughn in a position of increased danger, thereby triggering a duty to protect him from private violence….

The second element of a state-created danger claim is proximate causation. Defendants assert in conclusory fashion that ordering Vaughn to drop his stick and watching someone attack him with a baseball bat were not the proximate cause of his injuries. This argument is underdeveloped and therefore waived.

The “shocks the conscience” element of a state-created danger claim “is a reminder that liability for a constitutional tort requires proof that the defendant acted (or failed to act) not merely negligently but recklessly (equivalently, with deliberate indifference to the risk of harm that he was creating).” … “The cases generally understand ‘recklessness’ to mean knowledge of a serious risk to another person, coupled with failure to avert the risk though it could easily have been averted.”

Accepting the complaint as true, Defendants were recklessly indifferent to Vaughn’s safety. This is not a case where state actors were at worst negligent in protecting an individual from state-created dangers. The combination of ordering Vaughn to drop a stick he intended to use for self-protection and then watching — at a distance of only a few feet — while someone beat him to death with a baseball bat shows a reckless disregard for his life that shocks the conscience….

[Footnote: I take no position on the parties' side debate over whether Vaughn had a clearly established Second Amendment right to possess a stick for self-defense during a street altercation.]

[A]n individual has clearly established rights not be stranded … or trapped … in dangerous situations that state actors either created or made more perilous. Plaintiff’s claim falls within this clearly established line of cases. Defendants stranded Vaughn in a dangerous situation by ordering him to drop the object he intended to use for self-protection and simply watching while he was bludgeoned to death. The same police actions placed Vaughn in a trap of sorts by making him an easy target for the man who killed him. In short, Defendants are not entitled to dismissal on qualified immunity grounds because Plaintiff’s claim is based on clearly established due process rights…

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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