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Overturning DeShaney!

LSJ 375!
Jonathan Wender!
4/23/14!
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Emily Moseley!

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! The decision of the Supreme Court in DeShaney v. Winnebago City Social

Services Department sparked many opinions from both sides of the argument. Despite

the majority opinion of the court that Joshua DeShaneys 14th Amendment rights were

not violated, I would move to overturn this decision, arguing that his 14th Amendment

rights were violated, in multiple instances, during this case. His rights were violated in

that a special relationship did, I believe, exist between Joshua and the state social

services, and yet nothing was done in response to this special relationship, thereby

denying him substantive due process. Furthermore, the state denied him substantive

due process both when they released him back into the custody of his father, as well as

refusing to act to remove him from the abusive situation. !

! The special relationship (Rehnquist, 5) which the state held with Joshua was

ignored by the majority of the Supreme Court, but I believe there is substantial evidence

that such a relationship did, in fact, exist. The state social services of Wisconsin had a

legal duty to assist children in situations like Joshuas (Brennan, 12). As such, they

remove the duty of helping such children from ordinary citizens, taking it upon

themselves to take action in those situations. Claiming that responsibility for their own,

and refusing to carry out that legal duty, especially when they have explicitly expressed

their intent to do so, is, I would argue, an abuse of power, for it was to them, and only

them, that Joshua DeShaney could have looked to for help in his situation. The inaction

of a state can be as abusive of power as action (Brennan, 13), and therefore can be just

as much in violation of an individuals rights. The state, as the responsible actor in this

situation, had explicit knowledge of Joshuas condition, one social worker even claiming

that she just knew the phone would ring some day and Joshua would be
dead (Brennan, 12). With such explicit knowledge of his situation, inaction, as Brennan

claims is possible, is a huge abuse of their power, the power of the only institution with

the responsibility to take care of Joshua. Such an abuse violates Joshua DeShaneys

substantive due process rights. !

! The majority of the Court took a positivist (Radbruch, Five Minutes of Legal

Philosophy, 13) viewpoint on the 14th Amendment, claiming that, based on the direct

wording of the Amendment, and on such precedents as Youngberg v. Romeo, only

when the state takes an individual into custody, and holds him there, does the Due

Process clause come into play (Rehnquist, 6). However, as Justice Brennan points out,

while the majority opinion takes the viewpoint that the State had rendered Youngberg

incapable of fending for himself, he had actually been incapable of doing so all his life

due to his low I.Q., and what the state had actually done, in involuntarily committing him

to a mental institution, was cut him off from other forms of aid to which he could have

turned (Brennan, 11). Taking this more natural law, or justice-oriented (Radbruch,

Statutory Lawlessness and Supra-Statutory Laws, 6) point of view, Joshua DeShaney

was, in fact, denied due process, at several points during the investigation by the social

workers. Once he was denied such rights when the state did nothing to help him, and

once he was denied such rights when the state actively invited further abuse (though it

was not, I am sure, their intention to do so). Rehnquist argues that a states affirmative

duty, their duty to act (rather than step back), is only called upon when there is a

limitation which [the state] has imposed on [an individuals] freedom to act on his own

behalf (Rehnquist, 6). By this very definition, I would argue that Joshua DeShaney was

legally able to call upon the states affirmative duty, because the state social service, in
failing to act to remove him from a dangerous situation in which he, as a four-year-old

child, cannot act on his own behalf to protect himself, has indirectly imposed itself upon

him. As previously noted, the responsibility to take care of children like Joshua falls

solely, by their own explicit legal expression, on the state social services. As his only

recourse, the state has limited his sources of aid, and limited his freedom to act on his

own behalf. !

! The state, however, does not only partake of inaction during this investigation.

They acted quite directly upon Joshua, as well as indirectly limiting his freedom. In the

Youngberg case, the state very openly limited Youngbergs freedom. Justice Powell

remarks in the majority opinion of the case that Youngberg had been involuntarily

committed (Powell). He also describes a lower courts application of the 14th

Amendment, noting that the involuntarily committed retain liberty interests in freedom of

movement and personal security (Powell). Such an interpretation applies quite directly

to Joshuas case. Having once obtained custody of the child, the state social services

released him back into his fathers care, thereby inviting further abuse by his father.

Joshua has, in that moment, become an involuntarily committed inmate of his fathers

household. Knowingly placing a four-year-old child into a dangerous situation is, I would

argue, as limiting on his personal security as if they had maintained custody of him. And

as the only institution which could provide assistance for Joshua, the state social

services, in refusing aid, is denying him substantive due process (Brennan, 13), thereby

violating his 14th Amendment rights.!

! Joshua DeShaneys case was tragic, as the majority opinion admits in the

Supreme Court decision. However, they fail to do justice to the childs situation, ignoring
the special relationship that existed between Joshua and the state, and also ignoring

the several points during the investigation when Joshuas due process rights,

substantive and otherwise, were denied him, ultimately ending in the head trauma that

would ruin his life forever. As Justice Brennan remarks, inaction can be every bit as

abusive of power as action (Brennan, 13), but the state did not only partake of inaction,

but acted very directly in Joshuas life, so that while they did not strike the final blow to

his head, they still participated in his abuse, even if only by allowing and encouraging it

to continue. I would, therefore, move to overturn the Courts decision regarding this

case. !

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Sources!

DeShaney v. Winnebago Cty. Soc. Servs. Dept., 489 U.S. 189 (1989). !
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Radbruch, G. (1945). Five minutes of legal philosophy. !
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Radbruch, G. (1946). Statutory lawlessness and supra-statutory law. !
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Youngberg v. Romeo, 457 U.S. 307 (1982).!
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