JOSHUA DESHANEY, A MINOR, BY HIS GUARDIAN AD LITEM, AND MELODY
DESHANEY, PETITIONERS V. WINNEBAGO COUNTY DEPARTMENT OF SOCIAL
SERVICES, ET AL.

   No. 87-154

   In the Supreme Court of the United States

   October Term, 1988

   On Writ Of Certiorari To The United States Court Of Appeals For The
Seventh Circuit

   Brief For The United States As Amicus Curiae Supporting Respondents

            TABLE OF CONTENTS
   Question presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      Respondents did not "deprive" Joshua DeShaney of liberty
      or property within the meaning of the Due Process Clause
      A. Respondents did not deprive Joshua DeShaney of his liberty
         interest in personal security
      B. Respondents' alleged violations of state law do not
         constitute violations of the Due Process Clause
   Conclusion

                          QUESTION PRESENTED

   Whether a county government and employees of its Department of
Social Services can be held liable for violating the Due Process
Clause of the Fourteenth Amendment by failing to prevent the abuse of
a child by his father.

                     INTEREST OF THE UNITED STATES

   The Court's decision in this case may affect the extent to which
federal employees may be held personally liable for acts committed in
the course of their employment.  Several agencies of the United
States, particularly law enforcement agencies such as the Federal
Bureau of Investigation, endeavor within reasonable and lawful limits
to protect the general public, and sometimes particular individuals,
from assaults and other kinds of harm.  If petitioners prevail in this
case, then persons who suffer such harm could sue individual federal
employees who did not successfully prevent their injuries, on the
theory that the federal employees' failure to provide sufficient
protective services violates the Due Process Clause of the Fifth
Amendment and thus gives rise to a cause of action under Bivens v. Six
Unknown Names Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).

                               STATEMENT

   1. There has been no adjudication of the facts of this case.
Because the case was resolved against petitioners on summary judgment
below, the facts must be viewed in the light most favorable to
petitioners.

   On March 8, 1984, shortly before his fifth birthday, Joshua
DeShaney was taken to the hospital and given emergency brain surgery.
Joshua is now permanently and severely brain damaged and will be
institutionalized the rest of his life.  The cause of his brain damage
was persistent abuse by his natural father, Randy DeShaney, who had
custody of Joshua pursuant to a divorce decree previously entered by a
Wyoming court.  Pet. App. 37, 38-39, 50, 61;  J.A. 121-123.

   For some time before March 8, 1984, employees of the Winnebago
County (Wisconsin) Department of Social Services suspected that Joshua
was being abused.  The Department's attention first focused on Joshua
on January 22, 1983, when he was admitted to the Theda Clark Regional
Medical Center for treatment of numerous bruises (J.A. 110-111).  /1/
Although child abuse was suspected at that time, and the Department
obtained an order from a Wisconsin juvenile court placing Joshua
temporarily in the hospital's custody (Pet. App. 37, 53-54), county
attorney John Bodnar decided that there was not enough evidence to
take the child abuse allegations to the juvenile court (J.A. 93).
Proceedings in the juvenile court were terminated, and Joshua was
returned to Randy DeShaney's custody on January 25, 1983 (Pet. App.
56).

   Between January 22, 1983, and March 8, 1984, respondent Ann
Kemmeter, a social worker in the Department, made various efforts to
monitor Joshua's situation (see J.A. 110-121, 129-132).  Through those
efforts Kemmeter became aware of various injuries that Joshua
suffered;  Randy DeShaney and Marie DeShaney, the woman who lived with
him, consistently attributed those injuries to accidents (ibid.).
Kemmeter regularly recorded her suspicions that the cause of Joshua's
frequent injuries was abuse rather than accidents (ibid.).  There is
evidence that she said, after the tragic events of March 8, 1984, that
she "knew the phone would ring some day and Joshua would be dead"
(Pet. App. 38-39;  J.A. 107).

   The Department persuaded Randy DeShaney to sign a contract
promising to place Joshua in a Head Start program (where his condition
could be monitored), but the Department never forced Randy to comply
with that contract (Pet. App. 37-38, 56-57).  The Department also
never took various other steps that, in petitioners' view, a competent
social worker would have taken in response to the evidence that
Kemmeter gathered suggesting child abuse.  Petitioners do not contend
that anything respondents did harmed Joshua in any way;  rather, they
fault respondents exclusively for what they did not do.  In
particular, petitioners appear to fault the Department for not seeking
court intervention in January 1983 (Pet. Br. 5);  for not
investigating various incidents of possible abuse more thoroughly (id.
at 6, 26, 28);  for not intervening on occasions when Joshua was found
at home alone (id. at 6);  for not visiting Joshua often enough and
for not insisting on seeing him when Kemmeter did visit (id. at 7,
21);  for not contacting Joshua's natural mother (petitioner Melody
DeShaney), who lived in Wyoming (id. at 8, 32);  for not arranging
medical care for Joshua (id. at 20-21, 22, 32);  for not coordinating
their efforts with those of the police (id. at 28);  for not seeking
"a court order making the family's participation mandatory" (id. at
32);  and for not seeking foster home placement (ibid.).  See also
Pet. Br. 10, 12, 31 (relying on respondents' "refusal to act");  id.
at 11 (relying on "right to be protected by the state");  id. at 13,
16 (relying on "affirmative duty" of protection);  id. at 18 (relying
on "right to receive appropriate protection");  id. at 28 (relying on
respondents' alleged failure to "perform the functions and duties
which were mandated under the (state) statute").

   2. Joshua (by a guardian ad litem) and his mother sued the agency
and its employees in federal court under 42 U.S.C. 1983, alleging that
their failure to protect Joshua from Randy DeShaney's abuse
constituted an unconstitutional deprivation of Joshua's liberty or
property without due process of law.  The district court granted
summary judgment to the defendants.  (The court also dismissed pendent
state-law tort claims against these defendants and against Randy
DeShaney without prejudice.) Pet. App. 47-75.  The court reasoned that
"(t)he Fourteenth Amendment's concept of liberty does not include the
right to basic public services" (id. at 62) in the absence of a
"special relationship" between the individual and the state (id. at
63).  The court also held that, although there was "no bright line by
which the existence of a special relationship for Section 1983
purposes may be determined" (id. at 65), there was no such
relationship on the facts of this case (id. at 66-73).

   The court of appeals affirmed.  The court hypothesized two
different "rights" of which Joshua might claim to have been deprived:
(1) "a right -- a form of liberty or property -- to be protected by
the Department of Social Services from the brutalities perpetrated by
his father";  and (2) "his right to bodily integrity (again viewed as
a form of liberty or property within the meaning of the due process
clause)" (Pet. App. 39).  The court disposed of the first hypothesized
"right" summarily by invoking "the rule, well established in this
circuit, that the state's failure to protect people from private
violence, or other mishaps not attributable to the conduct of its
employees, is not a deprivation of constitutionally protected property
or liberty" (id. at 39-40).

   Focusing on the second hypothesized "right" at greater length, the
court restated the question as whether "the state was complicit in the
beatings" (Pet. App. 41), and proceeded to discuss the issue in terms
of causation (id. at 41-43).  The court found causation to be lacking,
apparently on the theory that the state did not increase the
probability of harm but merely failed to decrease it.  The court
distinguished this case from one "where the state places the victim in
a situation of high risk, thus markedly increasing the probability of
harm and by doing so becoming a cause of the harm" (id. at 43).  The
court also explicitly "reject(ed) the proposition embraced by a
divided panel of the Third Circuit in Estate of Bailey by Oare v.
County of York, 768 F.2d 503, 510-11 (1985), that once the state is
aware of the danger that a particular child may be abused, a special
relationship arises between it and the child and places on the state a
constitutional duty to protect the child from the abuse" (Pet. App.
44).  The court acknowledged that in prison cases there is a "special
relationship" that has been held to place limited constitutional
duties (under the Due Process Clause) on the state to protect inmates
from certain kinds of harm, but the court declined to extend the
concept to cases like this one on the ground that what is "special"
about that relationship is not present in this setting:  "the prison
authorities, having placed the inmate in a position of danger, cannot
shrug off all responsibility when the danger materializes and injury
results" (id. at 45).

                          SUMMARY OF ARGUMENT

   Petitioners must show a deprivation by respondents of a right
secured by the Constitution, not just a tort that may be cognizable
under state law, in order to prevail.  Specifically, petitioners must
show that respondents deprived Joshua DeShaney of liberty or property
without due process of law.  In an effort to identify a constitutional
violation, they rely on two theories:  (1) that Joshua DeShaney had a
constitutional right, based on the importance of a child's safety and
the relationship between the child and a child protection agency, to a
minimum level of protection of his personal security;  and (2) that
respondents disobeyed state law, which petitioners regard as a form of
deprivation of a due process entitlement to the benefit of that law.

   A. Randy DeShaney, not respondents, deprived Joshua DeShaney of his
liberty.  An expansive interpretation of the word "deprive," which
would cover respondents' failure to prevent that deprivation, is
contrary to the historical purpose of the Due Process Clause.  That
Clause was intended to prevent the arbitrary exercise of the powers of
government;  to prevent affirmative abuses of power;  and to bar
government oppression.  Petitioners seek to recover not because they
have suffered from any such arbitrary exercise of power, abuse of
power, or oppression, but because the power of government was not used
to save Joshua DeShaney from his father.  Any duty to use that power,
however, derives from the common law and not the Due Process Clause.

   In particular, the Clause is not a plausible source of duties to
provide social welfare services.  It was designed to protect the
individual from the things an overzealous government might do to him,
not to guarantee services that were virtually unknown when the
Fourteenth Amendment was adopted.  Nor should the Clause be
interpreted to regulate the competence with which such services are
provided once the state elects to provide them.  That is the classic
function of tort law, not a plausible function of a Clause explicitly
worded so as to protect against government deprivations.

   Although this Court has found in the Due Process Clause mandatory
duties to provide services in certain contexts, those contexts are
ones in which the state has already deprived the individual of
liberty.  Prisoners and institutionalized mental patients have
constitutional rights to minimum protective services because the state
cannot fail to provide such services as an incident to depriving them
of their liberty, not because the failure is itself a deprivation of
liberty.  Thus, most courts of appeals have interpreted the Due
Process Clause to apply to state inaction only when it is the state
itself that has put the person in a position of danger.  The contrary
holding of a divided panel of the Third Circuit, and dicta of the
Fourth Circuit, have been rejected by several courts of appeals and
should have been rejected by this Court.  The Court also should not
constitutionalize duties to provide social services merely because the
State may have precluded others from providing such services.  Such a
ruling would create sweeping new potential for government liability
and would lose sight of the fundamental purpose of the Due Process
Clause to prevent the misuse of power, rather than to compel its use.

   B. Petitioners' contention that Joshua DeShaney had a federal
constitutional right to have respondents comply with state law is
without merit.  This Court has rejected such wholesale translation of
state law into federal constitutional law in the past and should
continue to do so.  The cases on which petitioners rely are procedural
due process cases that hold the state law can define the entitlements
that a State may not take away without providing fair procedures.
Petitioners have not challenged the adequacy of the relevant Wisconsin
procedure (its tort law), and the cases on which they rely do not
stand for the much broader proposition that state law itself is
enforceable through the federal Constitution.

                               ARGUMENT

   RESPONDENTS DID NOT "DEPRIVE" JOSHUA DESHANEY OF LIBERTY OR
PROPERTY WITHIN THE MEANING OF THE DUE PROCESS CLAUSE

   The question presented in this case is not whether petitioners
should have a remedy for respondents' inaction in the fact of evidence
suggesting a need to protect Joshua DeShaney from his father.  That
question is of the sort that the law of torts has addressed for
centuries.  This case presents the different question whether the
Constitution was violated by respondents' inaction.  Tort-law concepts
have little, if any, utility in answering that question, for this
Court has repeatedly emphasized that "Section 1983 imposes liability
for violations of rights protected by the Constitution, not for
violations of duties of care arising out of tort law." Baker v.
McCollan, 443 U.S. 137, 146 (1979);  accord id. at 142;  Daniels v.
Williams, 474 U.S. 327, 332 (1986);  Parratt v. Taylor, 451 U.S. 527,
544 (1981);  id. at 549 n.7 (Powell, J., concurring in the result);
Martinez v. California, 444 U.S. 277, 285 (1980);  Paul v. Davis, 424
U.S. 693, 701 (1976).  The Court has emphatically "rejected reasoning
that 'would make of the Fourteenth Amendment a font of tort law to be
superimposed upon whatever system may already be administered by the
States'" (Daniels v. Williams, 474 U.S. at 332 (quoting Paul v. Davis,
424 U.S. at 701)).

   Petitioners' constitutional claim under Section 1983 depends on
whether respondents can be said to have disobeyed the constitutional
command "nor shall any State deprive any person of life, liberty, or
property, without due process of law" (U.S. Const. Amend, XIV, Section
1).  Petitioners seek to fit their claim within the terms of the
Clause in two ways.  First, they argue that respondents violated the
Constitution by allowing Randy DeShaney to take from Joshua his
liberty interest in personal security that is protected against state
deprivation by the Due Process Clause (see Ingraham v. Wright, 430
U.S. 651, 673 (1977)) -- an "interest in freedom from bodily harm"
(Daniels v. Williams, 474 U.S. at 341 (Stevens, J., concurring in the
judgment)).  Second, petitioners argue (Pet. Br. 24-29) that the
Wisconsin Children's Code, Wis. State. Ann. Sections 48.01 et seq.
(West. 1987), gives children such as Joshua DeShaney an entitlement --
a form of "liberty" or "property" -- to receive social welfare
services in accordance with the terms of the statute, and that a
failure to comply with any portion of the statute therefore
constitutes a "depriv(ation)" of that interest that is proscribed by
the Constitution.  We submit that neither theory is correct.

   A. Respondents Did Not Deprive Joshua DeShaney of His Liberty
Interest in Personal Security

   We begin by stating the obvious:  Respondents did not inflict the
beatings that deprived Joshua DeShaney of his liberty interest in
security.  Randy DeShaney did.  Like the parolee responsible for the
murder at issue in Martinez v. California, supra, Randy DeShaney "was
in no sense an agent of (respondents)" (444 U.S. at 285) when he
subjected Joshua to terrible abuse.  Thus, in the sense in which the
word is ordinarily and naturally used, respondents did not "deprive"
Joshua DeShaney of personal security.  /2/

   "Historically, (the Fourteenth Amendment) guarantee of due process
has been applied to deliberate decisions of government officials to
deprive a person of life, liberty, or property.  * * * This history
reflects the traditional and common-sense notion that the Due Process
Clause, like its forebear in the Magna Carta, * * * was intended to
secure the individual from the arbitrary exercise of the powers of
government." Daniels v. Williams, 474 U.S. at 331 (citations and
internal quotation marks omitted).  Petitioners cannot claim that
respondents made any deliberate decision to harm Joshua DeShaney or
arbitrarily exercised the powers of government.  Instead, petitioners
seek redress because respondents allegedly failed to exercise the
powers of government to save Joshua DeShaney in a situation in which,
viewing the record in the light most favorable to petitioners, it may
have been egregiously wrong not to do so.  If "we should not 'open the
federal courts to lawsuits where there has been no affirmative abuse
of power'" (Daniels v. Williams, 474 U.S. at 330, quoting Parratt v.
Taylor, 451 U.S. at 549 (Powell, J., concurring in the result)), then
petitioners' lawsuit most assuredly does not belong in federal court,
because it is respondents' non-use of power, not affirmative abuse of
power, that petitioners assert is a violation of the Constitution.  If
petitioners' argument were correct the holding of Daniels that the Due
Process Clause is not generally violated by negligent or inadvertent
impositions but principally by intentional ones would be rendered
nugatory in a class of case that bears even less relations to the Due
Process Clause than those where the defendant official actually though
unintentionally inflicts the harm.  For in most cases of omissions the
harm comes about, not because state officials intended it, but because
they neglected to prevent it, a case that would seem to raise if
anything less of a due process concern than Daniels.  /3/

   Petitioners do not seek to use the Due Process Clause to "bar()
certain government actions regardless of the fairness of the
procedures used to implement them * * * (and thus) prevent
governmental power from being 'used for purposes of oppression.'"
Daniels v. Williams, 474 U.S. at 331 (quoting Murray's Lessee v.
Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 277 (1856)).
Rather, they seek to use the Due Process Clause to require certain
government actions and thus to insist on a use of governmental power
to relieve persons from the dangers posed by others in society.  That
may be a noble goal, and a proper objective of state tort law.  But it
is not the case that "all common-law duties owed by government actors
were somehow constitutionalized by the Fourteenth Amendment" (Daniels
v. Williams, 474 U.S. at 335).

   That is particularly true of any possible duty to act with minimum
competence in providing social welfare services.  This Court has
stated explicitly that, "(a)s a general matter, a State is under no
constitutional duty to provide substantive services for those within
its border." Youngberg v. Romeo, 457 U.S. 307, 317 (1982) (citing
Harris v. McRae, 448 U.S. 297, 318 (1980);  Maher v. Roe, 432 U.S.
464, 469 (1977)).  "The Due Process Clause is phrased in the negative.
 It says that a state shall not 'deprive' residents of life, liberty,
or property, save with due process.  It does not require the state to
furnish residents with property they lack, or ensure that they do not
suffer loss at private hands." Archie v. City of Racine, 847 F.2d at
1220.  "The men who wrote the Bill of Rights were not concerned that
Government might do too little for the people but that it might do too
much for them.  The Fourteenth Amendment, adopted in 1868 at the
height of laissez-faire thinking, sought to protect Americans from
oppression by state government, not to secure them basic government
services." Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir.
1983), cert. denied, 465 U.S. 1049 (1984).

   It is no answer to say that the Constitution, while imposing on the
States no duty to provide social welfare services, nevertheless
regulates the care with which such services are provided once the
State elects to provide them.  The constitutional guarantee is that
the State will not -- through social welfare services or any other
means -- "deprive any person of life, liberty, or property, without
due process of law." By no feat of alchemy can that constitutional
guarantee be transmuted into an assurance that the State, once it
undertakes to protect against certain deprivations caused by persons
other than agents of the State, will not permit any such deprivation
that a competent performance of the State's undertaking would have
prevented.  Any such assurance is a feature of tort law that has
nothing to do with the words used in or the purpose of the Due Process
Clause.  See Bradberry v. Pinellas County, 789 F.2d 1513, 1517-1518
(11th Cir. 1986);  id. at 1516-1517 (citing Jackson v. City of Joliet,
715 F.2d at 1205);  Wideman v. Shallowford Community Hosp., Inc., 826
F.2d 1030, 1037 (11th Cir. 1987).  /4/

   This straightforward reading of the Due Process Clause is
consistent with the cases in which this Court has interpreted the
Clause to require the provision of particular services in particular
settings.  The common feature of all such cases is that the State has
already deprived the individual of his liberty before any duty arises,
and it is entirely compatible with the language of the Due Process
Clause, and its historical purpose to prevent affirmative abuses of
government power, to hold that the deliberate, state-inflicted
deprivation of liberty that has already occurred goes too far when it
is accompanied by neglect of the individual's basic needs.  For
example, institutionalized mental patients have a right under the Due
Process Clause to "minimally adequate or reasonable training to ensure
safety and freedom from undue restraint" (Youngberg v. Romeo, 457 U.S.
at 319) specifically because the individual is "institutionalized * *
* and wholly dependent on the State" (id. at 317).  To recognize such
a right is not to suggest that those whom the State has never
previously deprived of liberty can insist that a State's failure to
save them from harm inflicted by third persons is itself a deprivation
of liberty within the meaning of the Due Process Clause.

   Likewise, any due process right to medical care that may belong to
prisoners and others involuntarily in state custody (see West v.
Atkins, No. 87-5096 (June 20, 1988) (Scalia, J., concurring in part
and concurring in the judgment);  cf. Estelle v. Gamble, 429 U.S. 97
(1976) (Eighth Amendment)) stems from the fact that the State has
already deprived them of liberty.  The denial of medical care itself,
unaccompanied by any other deprivation of liberty, is not itself a
deprivation of liberty.  And, if prisoners have any due process right
to be protected from assaults by other prisoners when the failure to
prevent the assault amounts to more than negligence but less than an
intentional tort -- an issue this Court has not decided (see Daniels
v. Williams, 474 U.S. at 334 n.3;  Davidson v. Cannon, 474 U.S. 344
(1986)) -- then, again, the logical basis for that right is that
imprisoning a person and exposing him to an accompanying risk of
violence that he is, by virtue of his imprisonment, unable to avoid,
and that the State (in some aggravated way) neglects to prevent, is
too great a deprivation for the Constitution to tolerate.  See also
Davidson v. Cannon, 474 U.S. at 355 (Blackmun, J., dissenting)
(emphasis added) ("where the State renders a person vulnerable and
strips him of his ability to defend himself, an injury that results
from a state official's negligence in performing his duty is
peculiarly related to the governmental function").

   The lesson that most of the courts of appeals have correctly drawn
from the Constitution itself and from this Court's cases is that a
tort, in order to rise to the level of a violation of the Due Process
Clause, must at a minimum involve some action of the state that
creates the victim's predicament, and not just inaction in the face of
a predicament that is not of the state's making.  Only if the state
has placed the individual in a position of danger can it be said to
have deprived him of life, liberty, or property.  Thus, whether or not
their reasoning and results are ultimately correct, cases such as Doe
v. New York City Dep't of Social Services, 649 F.2d 134 (2d Cir.
1981), after remand to district court, 709 F.2d 782, cert. denied, 464
U.S. 864 (1983), and Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791
(11th Cir. 1987) (en banc), petition for cert. pending, No. 87-521,
are not contrary to the decision below.  Those cases are at least
arguably consistent with the rule that the state violates the Due
Process Clause only by acting so as to deprive a person of liberty,
and not merely by passively allowing a third party to deprive someone
of liberty.  In each of those cases, the state had taken the
affirmative step of placing the child in the care of the child's
eventual abuser.  In the present case, respondents took no such
affirmative step;  they merely failed to remove Joshua DeShaney from
his father's preexisting custody.  Likewise, numerous courts of
appeals have endorsed the principle, stated repeatedly by the Seventh
Circuit, /5/ that duties to protect a person arise under the Due
Process Clause only when "the state itself has put (that) person in
danger." Escamilla v. City of Santa Ana, 796 F.2d 266, 269 (9th Cir.
1986);  see Wood v. Ostrander, No. 87-3924 (9th Cir. July 13, 1988),
slip op. 8555 & n.5;  Wideman v. Shallowford Community Hosp., Inc.,
826 F.2d 1030, 1035, 1037 (11th Cir. 1987);  Ketchum v. Alameda
County, 811 F.2d 1243, 1247 (9th Cir. 1987);  Washington v. District
of Columbia, 802 F.2d 1487, 1481-1482 (D.C. Cir. 1986);  Bradberry v.
Pinellas County, 789 F.2d 1513, 1517 (11th Cir. 1986);  Estate of
Gilmore v. Buckley, 787 F.2d 714, 722 (1st Cir.), cert. denied, 479
U.S. 882 (1986);  see also Rankin v. City of Wichita Falls, 762 F.2d
444, 449 (5th Cir. 1985).

   This Court should specifically reject -- as the First, Seventh,
Eighth, and Eleventh Circuits have specifically rejected /6/ -- the
notion espoused by a divided panel of the Third Circuit in Estate of
Bailey ex rel. Oare v. County of York, 768 F.2d at 510-511, and by
dicta in Jensen v. Conrad, 747 F.2d 185, 190-194 (4th Cir. 1984),
cert. denied, 470 U.S. 1052 (1985), that a tort suit for government
inaction becomes a tenable claim under the due Process Clause when the
state undertakes to protect against, but did not create, the danger to
a specific individual.  This approach promotes an indefinite array of
state-law services into constitutional rights by first affixing the
label "special relationship," and then broadly construing that label
to include as a beneficiary of constitutional protection anyone whose
danger is known to a state actor whose job involves protection against
that danger.  In that way, it conveniently distinguishes Martinez v.
California, supra, in which the Court gave as one of its reasons for
denying relief the fact that the murder victim was no more foreseeably
in danger than any other member of the general public (444 U.S. at
285).  What this approach does not do, however, is address the concern
of the Due Process Clause:  to forbid States from depriving persons of
liberty without due process of law.  Instead, this expansive approach
provides "a category in which to dump cases when a court would like to
afford relief" (Archie v. City of Racine, 847 F.2d at 1223).  It is
nothing more than a way to make the Due Process Clause into "'a font
of tort law to be superimposed upon whatever systems may already be
administered by the State,'" which is exactly what this Court has said
that courts should not do (Daniels v. Williams, 474 U.S. at 332
(quoting Paul v. Davis, 424 U.S. at 701)).

   Finally, respondents cannot be charged with having deprived Joshua
DeShaney of his liberty in the constitutional sense -- as opposed to
having committed a tort -- merely because of the possibility that
others might have come to Joshua's aid if respondents had not been
assigned by state law the primary or even exclusive role in
safeguarding the welfare of abused children.  It is the nature of
modern society that citizens look to the government to provide many
basic protective services -- police services, fire protection,
consumer protection, and social services are examples -- that might be
provided, on an organized or an ad hoc basis, by others if the
government did not provide them.  /7/ To treat that fact as a
sufficient reason to hold the government liable for a constitutional
violation, whenever it falls short (or far short) of standards for the
reasonable performance of that function, would go a long way to
nullify the principle that not every tort committed by a government
actor is a violation of the Due Process Clause.  /8/ Whether a
particular power (such as the power to intervene on behalf of abused
children) is possessed exclusively by the government or not, the Due
Process Clause simply was not intended to compel the use of such power
but only to prevent its misuse.  Parratt v. Taylor, 451 U.S. at 552
n.10 (Powell, J., concurring in the result).  The failure to act when
a reasonable person would act is the province of tort law, not the Due
Process Clause.

   B. Respondents' Alleged Violations of State Law Do Not Constitute
Violations of the Due Process Clause.

   Petitioners' alternative theory (Pet. Br. 24-29) -- that each and
every duty imposed on respondents by state statutory law is one whose
violation, without more, amounts to a violation of the Due Process
Clause and gives rise to a potential federal cause of action -- was
labeled "obviously frivolous" by former Chief Justice Burger
(Youngberg v. Romeo, 457 U.S. at 330 n.* (Burger, C. J., concurring in
the judgment);  contra id. at 325 (Blackmun, J., concurring)).
"(W)ere every substantive right created by state law enforceable under
the Due Process Clause, the distinction between state and federal law
would quickly be obliterated" (id. at 330 n.* (Burger, C. J.,
concurring in the judgment)).

   Indeed, this Court has already rejected petitioners' theory on at
least two occasions.  In Snowden v. Hughes, 321 U.S. 1 (1944), as in
this case, the Court was asked to federalize state law by holding that
any violation of state law also constituted a violation of the federal
Constitution.  The Court rejected any such holding, observing (321
U.S. at 11 (emphasis added;  citations omitted)):

         If the action of the Board is official action it is subject
      to constitutional infirmity to the same but no greater extent
      than if the action were taken by the state legislature.  Its
      illegality under the state statute can neither add to nor
      subtract from its constitutional validity.  Mere violation of a
      state statute does not infringe the federal Constitution.  And
      state action, even though illegal under state law, can be no
      more and no less constitutional under the Fourteenth Amendment
      then if it were sanctioned by the state legislature.

See also Beck v. Washington, 369 U.S. 541, 554-555 (1962);  Hebert v.
Louisiana, 272 U.S. 312, 316 (1926);  Barney v. City of New York, 193
U.S. 430 (1904);  Archie v. City of Racine, 847 F.2d at 1215-1218;
Silverman v. Barry, 845 F.2d 1072, 1079 (D.C. Cir. 1988);  Stern v.
Tarrant County Hosp. Dist., 778 F.2d 1052, 1058-1059 (5th Cir.) (en
banc), cert. denied, 476 U.S. 1108 (1985).

   More recently, in Pennhurst State School & Hosp. v. Halderman, 465
U.S. 89 (1984), this Court considered the Eleventh Amendment immunity
of state officials against injunctive relief based on violations of
state law.  The Court found an Eleventh Amendment bar to such relief,
observing that "(a) federal court's grant of relief against state
officials on the basis of state law * * * does not vindicate the
supreme authority of federal law" and that "it is difficult to think
of a greater intrusion on state sovereignty than when a federal court
instructs state officials on how to conform their conduct to state
law" (465 U.S. at 106).  Those pronouncements would be most pointless,
however, if (as petitioners contend) every violation of state law is
also a violation of the Due Process Clause of the Fourteenth
Amendment.  "If the alchemist's wand can transmute a violation of
state law into a violation of the Constitution, Pennhurst will be for
naught, federal enforcement of state law the order of the day" (Archie
v. City of Racine, 847 F.2d at 1217).

   Board of Regents v. Roth, 408 U.S. 564 (1972), in no way supports a
contrary result.  Roth and cases relying on it, such as Board of
Pardons v. Allen, No. 86-461 (June 9, 1987), are interpretations of
the procedural requirements of the Due Process Clause.  See California
v. Greenwood, No. 86-684 (May 16, 1988, slip op. 8.  They stand for
the proposition that state law is one source of "entitlement(s)" that
amount to "more than * * * abstract need(s) or desire(s)" (Roth, 408
U.S. at 577) and thus cannot be taken away by the state without
constitutionally adequate procedures.  Once state-law entitlements
have been identified, this Court does not enforce the state law giving
rise to those entitlements, but rather tests against the federal
Constitution the procedures by which the state deprives a person of
those entitlements.  See, e.g., Hewitt v. Helms, 459 U.S. 460, 472-477
(1983).  Petitioners, however, have mounted no challenge to the
constitutional adequacy of any relevant Wisconsin procedures.  /9/

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   JOHN R. BOLTON

      Assistant Attorney General

   DONALD B. AYER

      Deputy Solicitor General

   ROY T. ENGLERT, JR.

      Assistant to the Solicitor General

   BARBARA L. HERWIG

   JOHN S. KOPPEL

      Attorneys

   AUGUST 1988

   /1/ An earlier allegation that Randy DeShaney was abusing Joshua
was made to the police department in January 1982 and may have been
reported to the Department (see J.A. 152-153).

   /2/ See Archie v. City of Racine, 847 F.2d 1211, 1215 (7th Cir.
1988) (en banc) ("Giese did not deprive DeLacy of her life.  Emphysema
and pneumonia did that.");  Bradberry v. Pinellas County, 789 F.2d
1513, 1518 (11th Cir. 1986) ("The state did not kill Kenny Ray Thomas,
the ocean did.");  Estate of Gilmore v. Buckley, 787 F.2d 714, 720
n.10 (1st Cir.) ("(I)f state officials (absent 'special circumstances'
* * *) do no more than act erroneously -- even if the error is
egregious -- and the killer is not an officer of the state but is a
private third party, we think the essential element of the state's
having worked a deprivation is missing."), cert. denied, 479 U.S. 882
(1986);  Jackson v. Byrne, 738 F.2d 1443, 1446 (7th Cir. 1984)
("Although there were deaths in this case, the state did not, within
the meaning of the Fourteenth Amendment, 'deprive' plaintiffs'
decedents of life.  The fire killed Santana and Tommy Jackson,
government officials did not.");  Estate of Baily ex rel. Oare v.
County of York, 768 F.2d 503, 513 (3d Cir. 1985) (Adams, J.,
dissenting).

   /3/ The Court need not pause long over the argument of amici the
American Civil Liberties Union Children's Rights Project, et al., that
there is no relevant distinction between action and inaction, or
omission and commission, for purposes of determining the requirements
of the Due Process Clause (Br. 46-52).  That argument is squarely
contrary to the reasoning of the Court in Daniels v. Williams, supra.
Furthermore, even if amici could succeed in showing that there are
situations in which it is difficult to distinguish between a claim
that the state's action violated the Constitution and a claim that the
state's failure to act violated the Constitution, such a showing would
neither make the action/inaction distinction irrelevant nor obscure in
any way the pellucid fact that the delicts alleged in this case all
consist of respondents' inaction in the face of circumstances calling
for action, rather than the opposite.  As the Court said in addressing
a similar argument in Daniels v. Williams -- that negligence should
not be distinguished from intent -- "the difference between one end of
the spectrum * * * and the other * * * is abundantly clear" (474 U.S.
at 335).

   /4/ The concluding observations made by the First Circuit in a
similar case are pertinent here (Estate of Gilmore v. Buckley, 787
F.2d at 722-723):

         Enormous economic consequences could follow from the reading
      of the fourteenth amendment that plaintiff here urges.  Firemen
      who have been altered to a victim's peril but fail to take
      effective action;  municipal ambulances which, when called,
      arrive late;  and myriad other errors by state officials in
      providing protective services, could all be found to violate the
      Constitution.  It would seem appropriate that the citizenry,
      acting through state legislatures and state courts, should
      determine how far it wishes to go in reimbursing claims of this
      type.

   /5/ Pet. App. 43-44;  Archie v. City of Racine, 847 F.2d at
1222-1223;  id. at 1226 (Posner, J., concurring);  Walker v. Rowe, 791
F.2d 507, 511 (7th Cir.), cert. denied, 479 U.S. 994 (1986);
Ellsworth v. City of Racine, 774 F.2d 182, 185 (7th Cir. 1985), cert.
denied, 475 U.S. 1047 (1986);  Beard v. O'Neal, 728 F.2d 894, 899-900
(7th Cir.), cert. denied, 469 U.S. 825 (1984);  Jackson v. City of
Joliet, 715 F.2d at 1204-1205;  Bowers v. DeVito, 686 F.2d 616, 618
(7th Cir. 1982) ("If the state puts a man in a position of danger from
private persons and then fails to protect him, it will not be heard to
say that its role was merely passive;  it is as much an active
tortfeasor as if it had thrown him into a snake pit.");  see also
White v. Rochford, 592 F.2d 381 (7th Cir. 1979).

   /6/ Estate of Gilmore v. Buckley, 787 F.2d at 721-722;  Archie v.
City of Racine, 847 F.2d at 1223;  Pet. App. 44-45;  Harpole v.
Arkansas Dep't of Human Services, 820 F.2d 923, 926 (8th Cir. 1987);
Wideman v. Shallowford Community Hosp., Inc., 826 F.2d at 1035-1036.

   /7/ Thus, as the Seventh Circuit observed in Jackson v. Byrne, 738
F.2d at 1447, in holding that the City of Chicago and its officials
could not be held liable for the deaths caused by a fire that the City
failed to prevent, and did not assist striking firefighters to
prevent,

         We are not unmindful of the argument that the city acquired a
      constitutional duty to provide services once it established
      itself as the provider of fire protection and thereby lessened
      the incentive for private citizens to protect themselves.  The
      same theory, however, would lead to liability when a state takes
      on the task of removing the criminally insane from society and
      then releases a lunatic who has not been cured of his propensity
      for violence, see Bowers (v. DeVito), supra, or when a
      municipality sets speed limits for train traffic at railroad
      crossings and then refuses to enforce its own train speed
      ordinance, see Hull v. City of Duncanville, 678 F.2d 582 (5th
      Cir. 1982).  In neither case did the governmental unit deprive a
      victim of life by omitting to perform a constitutionally
      cognizable duty.  We decline today to break with the Bowers and
      Hull line of reasoning.  To do so would open the way for
      scrutiny by the federal courts of virtually every municipal
      decision to reallocate protective resources.  Neither the
      Fourteenth Amendment nor Section 1983 was meant to give the
      federal courts such a role.  See Jackson (v. City of Joliet, 715
      F.2d) at 1204.

   /8/ Indeed, even under tort law this Court has observed, through
Justice brandeis speaking for a unanimous Court, that there is no
"substantive right to recover the damages resulting from failure of a
government or its officers to keep the peace." Turner v. United
States, 248 U.S. 354, 358 (1919);  see also Bergmann v. United States,
 689 F.2d 789, 796 (8th Cir. 1982);  Redmond v. United States ex re.
SEC, 518 F.2d 811, 816 (7th Cir. 1975).  Yet, if petitioners' theory
were to prevail in this case, then presumably the government's
"Preemptive peacekeeping role would lead to a holding that government
inaction in the face of strong evidence of the need for action is not
just a tort but a Due Process Clause violation giving rise to a
substantive right to recover damages under Section 1983 or Bivens.

   /9/ When the deprivation of such entitlements is undertaken by
individual state employees allegedly violating state law rather than
through procedures sanctioned by the State itself, the relevant
procedures to be tested against the Due Process Clause are the
States's remedies "generally tort-law remedies) for the deprivation.
Hudson v. Palmer, 468 U.S. 517, 533-534 (1984);  see also Daniels v.
Williams, 474 U.S. at 339-340, 342 & n.19 (Stevens, J., concurring in
the judgment).  Petitioners undoubtedly have cast this case as a
federal action precisely because they wish to obtain more redress than
is available under Wisconsin law (see Wis. Stat. Ann. Section
893.80(3) (West 1983) (limiting recovery in tort actions against
governmental agencies and their employees to $50,000);  Massachusetts
Committee for Children and Youth Br. 37).  Petitioners have nowhere
argued, however, that the limitation of liability contained in
Wisconsin law renders the State's postdeprivation procedures
constitutionally inadequate.  Nor would such an argument be plausible.
 Cf. Daniels v. Williams, 474 U.S. at 342-343 (Stevens, J., concurring
in the judgment) (existence of a sovereign immunity defense, barring
recovery altogether against public officials, does not make remedial
system constitutionally inadequate).