A godawful case out of the 5th Circuit extends qualified immunity to officers who pick up a clearly disoriented and incoherent elderly man in town, drive him out to the county line, and leave him by the side of the road where he is later struck and killed. ca5.uscourts.gov/opinions/pub/1…
The 5th Circuit’s opinion includes this holding, which it sort of dubiously attributes to the Supreme Court:
“[S]tates and their officials have no affirmative duty to protect individuals from violence by private actors.”
Really?
“[S]tates and their officials have no affirmative duty to protect individuals from violence by private actors.”
Really?
The high court precedent cited by the 5th Circuit is Deshaney v Winnebago County. It’s a tough case to read, holding that you can’t sue the govt for failing to intervene in a case of child abuse. The reasoning depends on the distinction between state inaction and state action.
In the 5th Circuit case we have state action—law enforcement officers driving the man to the county line and leaving him there as dusk set in.
The 5th Circuit says it’s never recognized a ‘state-created harm’ exception to Deshaney, but imo it hasn’t shown Deshaney controls.
The 5th Circuit says it’s never recognized a ‘state-created harm’ exception to Deshaney, but imo it hasn’t shown Deshaney controls.
The dissent.
Notably this Fleming case went the other way in a July 2019 panel opinion that was subsequently withdrawn. One-time twitter favorite Circuit Judge Willett and Circuit Judge Smith, the opinion’s author, both seem to have changed their votes. ca5.uscourts.gov/opinions/pub/1…
