The opinion
SHEFFIELD, J., concurring.
Although I concur with the result, I would adopt the Ninth Circuit’s test that eliminates the “shocks the conscience” element when assessing an alleged state-created danger. The five-part test adopted by the Eighth Circuit is so subjective and difficult to apply that it has rendered the state-created-danger doctrine meaningless. As the majority stated, the five elements of the state-created-danger doctrine are: 1) membership in a limited, precisely definable group, 2) the conduct of state or local officials put them at a significant risk of serious, immediate, and proximate harm, 3) the risk was obvious or known to the state or local officials, 4) the officials acted recklessly in conscious disregard of the risk, and 5) in total, the conduct shocks the conscience. The first four factors should be retained, but I would not require the final element.
An example that clearly illustrates this point is found in the case S.S. v. McMullen, 225 F.3d 960 (8th Cir.2000) (en banc). In that case a child was released from state custody and returned to her father, even though the Missouri Division of Family Services knew that the father was allowing the child to have contact with a known pedofile named Joel Griffis. Id. at 962. Griffis himself contacted the child’s social worker (after the social workers knew his history) and stated that he thought it would be unfair for his contact with the child to be limited. Id. at 965 (Gibson, J., dissenting). The child’s foster mother told the social workers that the child stated that “she humps with her daddy, Jon” and that she had exhibited inappropriate sexual behaviors numerous times. Id. Less than three months after the child was released to her father, Griffis molested her. Id. at 966.
11sThe Eighth Circuit, sitting en banc found that the social workers’ action in returning the child did not shock the conscience because it amounted to gross negligence. Id. at 964. Three judges dissented, stating that the defendant social workers engaged in “reflections upon the risk to which they willfully subjected” the child and that this amounted to a deliberate indifference that should shock the conscience of any court. Id. at 969.
If the facts in the S.S. case do not shock the conscience of a court, then almost nothing will. In fact, I have been unable to locate any case in which the Eighth Circuit’s conscience was shocked. I agree with the Ninth Circuit that language such as “shocks the conscience” is too subjective to be helpful in analyzing an alleged state-created danger. Kennedy v. City of Ridgefield, 439 F.3d 1055, 1064-65 (9th Cir.2006).
I do, however, agree with the majority that Officer Lokey’s conduct did not put Christina at significant risk of serious, immediate, and proximate harm.
Accordingly, I concur in the result.