Remaking the Mold: Pursuing Failure-to-Protect Claims Under State Constitutions via Analogous Bivens Actions

If a state child-welfare agency does not remove a child from his father’s custody, despite documented evidence of abuse and its exclusive ability to do so, is it partly responsible for the injuries he sustains at his father’s hands? If the police repeatedly fail to respond after a man violates a restraining order and kidnaps his three children, giving him hours to acquire a gun, are they legally complicit in their subsequent shooting and deaths? The Supreme Court considered these questions in DeShaney v. W innebago County Department of Social Services and Town of Castle Rock v. Gonzales, respectively, and determined that neither the federal Constitution nor federal statutes establish any positive obligation to protect individuals from private harms. The Court’s resistance to imposing affirmative duties on the federal government, however, is not conclusive on the state level. Ultimately, this Note argues that state constitutions may better support government accountability in failure-to-protect suits. To make this point, it first suggests that the reasoning behind the Court’s jurisprudence on duty to protect is diluted outside a federal context, and may speak in favor of independent state redress of the issue. The Note then offers the possibility of using analogous Bivensclaims arising from state constitutional provisions to hold state social welfare entities accountable for failing to protect individuals known to be in imminent danger from third party violence. The Note concludes that states may be more willing to provide for a duty to protect than the federal government, and may in fact be the preferred source for such rights.