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Monday, November 24, 2008

Ind. Decisions - One today from 7th Circuit

Christine In Sandage, et al. v. Bd. of Comm., Vanderburgh Co. (SB Ind., Judge Barker), a 11-page opinion by Judge Posner begins:

The plaintiffs’ decedents, Sheena Sandage-Shofner and Alfonzo Small, along with a third person, were murdered in Sandage-Shofner’s apartment by a man named Moore, who then killed himself. Moore had been serving a four-year sentence, in the custody of the county sheriff, for robbery. But he was on work release, employed cleaning parking lots. It was while he was on work release that he committed the murders. Twice—once one month before the murders, the other time two days before—Sandage-Shofner had called the sheriff’s department to complain that Moore was harassing her. * * * The plaintiffs, in this suit under 42 U.S.C. § 1983 against county officials, claim that the department’s failure to act on the complaint of harassment by revoking Moore’s work-release privilege and reimprisoning him deprived their decedents of their lives without due process of law, in violation of the Fourteenth Amendment. The district judge dismissed the complaint for failure to state a claim. Fed. R. Civ. P. 12(b)(6).

We assume, given the procedural posture, that the defendants were reckless in failing to act on the complaint of harassment. (If they were merely negligent, the plaintiffs would have no case.) The judge was nevertheless right to dismiss the suit. There is no federal constitutional right to be protected by the government against private violence in which the government is not complicit. So the Supreme Court held in DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989), affirming a decision by this court, in which the principle was already well established. In Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982), for example, we had said that while “there is a constitutional right not to be murdered by a state officer, for the state violates the Fourteenth Amendment when its officer, acting under color of state law, deprives a person of life without due process of law, . . . there is no constitutional right to be protected by the state against being murdered by criminals or madmen . . . . The Constitution is a charter of negative liberties; it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.” See also Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir. 1983). There is a moral right to such services—protection against violence is the single most important function of government—and a government that fails in this duty invites well-deserved political retribution. But there is no enforceable federal constitutional right.

Posted by Marcia Oddi on November 24, 2008 01:21 PM
Posted to Ind. (7th Cir.) Decisions