It’s unclear why Linda Greenhouse chose to give a constitutional quiz, but it serves well to remind us why the police owe us nothing.  Often, people will remark disparagingly why cop cars bear the marketing pitch, “To Protect And Serve,” and yet the police appear entitled to do neither.  While nothing precludes them from fulfilling these words, nothing requires them to do so either.  Most people find that shocking.

It stems from a Supreme Court decision from 1989, DeShaney v. Winnebago County Department of Social Services.  By a 6-3 decision, the opinion, written by Chief Justice William Rehnquist, took the most niggardly view of the government’s obligation to the people possible.

But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without “due process of law,” but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.

In DeShaney, a four-year-old boy was left comatose and brain damaged after he was beaten by his father.  The Winnebago County Department of Social Services knew of the alleged abuse, and chose to shrug it off, prompting Justice Harry Blackmun’s “Poor Joshua” dissent:

Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents, who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante at 193, “dutifully recorded these incidents in [their] files.” It is a sad commentary upon American life, and constitutional principles — so full of late of patriotic fervor and proud proclamations about “liberty and justice for all,” that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve — but now are denied by this Court — the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U.S.C. § 1983 is meant to provide.

As Greenhouse explained, CJ Rehnquist, and the majority of the Court that agreed with him, could not get over the fact that it wasn’t the state, but a private actor, who did the harm.

Chief Justice Rehnquist couldn’t get past the fact that the actual injuries were inflicted not by government agents but by a private person. (The father was prosecuted, convicted and served a brief prison sentence.)

It was true, the chief justice acknowledged, that the court’s precedents imposed a degree of government accountability for the welfare of people held in custody, in prison or other government-run institutions. But these precedents offered “no help,” he said; Joshua was at home, not in government custody, at the time of his injuries. “That the state once took temporary custody of Joshua does not alter the analysis,” Chief Justice Rehnquist wrote, “for when it returned him to his father’s custody, it placed him in no worse position than that in which he would have been had it not acted at all; the state does not become the permanent guarantor of an individual’s safety by having once offered him shelter.”

This is referred to as the “negative rights” view of the government’s obligation, that the Constitution precludes the government from performing the acts that cause the harm, but imposes no affirmative duty to prevent the harm caused by others. Absent a special relationship, we’re on our own. If the government shows up to help, it’s at their leisure, the governmental version of noblesse oblige.  There is nothing in the Constitution that prevents the police from protecting and serving; it just doesn’t require them to do so.

This ruling, despite the contentions of the three dissenting justices, has guided the law ever since.

All these years later, the decision continues to immunize government from the kind of accountability that common sense and justice would seem to require. A Colorado woman, Jessica Gonzales, tried to steer around the DeShaney obstacle in a case she brought against the town of Castle Rock after her estranged husband snatched their three children from her front lawn and murdered them. Ms. Gonzales had obtained a protective order against her husband, but even though she knew he had taken the children and knew where he had gone with them, the police ignored her repeated pleas to find and intercept him. The Supreme Court ruled in 2005 that Ms. Gonzales had no constitutional claim against the police.

Greenhouse notes that this little understood and recognized black letter law seems to fly in the face of “common sense and justice.”  As neither common sense nor justice serves to illuminate anything, it might be better said that it contradicts reason and expectations. But it is the law.  Sure, the Supreme Court could reverse DeShaney, and perhaps a case will make its way to One First Street eventually, and when it does, perhaps the justices then seated will take a less narrow view of the obligations of the government to its people. Or not.

That could happen in a year. Or ten years. Or never. How many people in need of assistance will be left to dangle? For those who shed tears over dead children, how many children of women like Jessica Gonzalez will be murdered while the police sit around discussing which flavor of donut they prefer? When that ambulance doesn’t come to take your critically ill child to the hospital in time to prevent death, because it decided to stop for lunch on the way, what will you do about it?

In a wholly unrelated post, the point was made that we’re up to our eyeballs in bad precedent, bad law, that will be so hugely difficult and take forever to undo that the suffering of banal injustices until (and if) a change occurs demands that we take a stand and argue strenuously against it, even if we’re doomed to fail because of precedent like DeShaney.  If we push hard enough, long enough, maybe this will turn the law, little by little, toward a better direction.

Does this mean we, the lawyers, should spit into the wind, knowing that there is no possibility of bringing an action that can survive precedent?  No, but when the opportunity arises in the course of a viable action, where we are already fighting in the trenches anyway, push for better law.  Don’t be complicit in the perpetuation of bad law merely because it’s there.

Maybe your case will be the one to make it to the Supreme Court and change the nightmare of neglect and irresponsibility that Rehnquist brought upon a nation.  Even if it doesn’t, you did no harm by fighting for the right thing.  Maybe you will annoy the judge by arguing against the tide, but maybe the judge, like Judge Michael Hogan in the Hammonds case, will agree and buck the slavish adherence to precedent.

That’s how we try to make change happen for the better.  And DeShaney will serve to explain to many why this inexplicable gap in the duty of police to serve and protect exists.  Or we can fall back on excuses for why nothing can ever be done, and so we shouldn’t bother.