noting that one factor to consider in evaluating whether special relationship exists is “[wjhether the state has expressly stated its desire to provide affirmative protection to a particular class or specific individuals”
How later courts described this case
- noting that one factor to consider in evaluating whether special relationship exists is “[wjhether the state has expressly stated its desire to provide affirmative protection to a particular class or specific individuals”
- reviewing prior case-law on “special relationship” doctrine and stating guidelines for “special relationship” analysis, but holding defendant state and county social services agency officials entitled to immunity from suit alleging failure to protect abused children because the law as it affected them was not clearly established at the time of the alleged wrongdoing
- suggesting that special relationship and hence cause of action might exist against state agencies which failed to intervene to prevent beatings of children by their guardians
- dismissing federal claims, but leaving consideration of plaintiff's rights under South Carolina tort law to courts of that state
Written by the judges who cited it.
The opinion
MURNAGHAN, Circuit Judge,
concurring:
Sometimes I yield to an impulse to embellish an opinion in a way not strictly necessary. The notion may exist that I can clarify or improve the law, even though the issue I endeavor to address is not truly presented by the case. As time goes by, however, I am coming more and more to an appreciation that, however silver the speech, silence is usually constructed from 24 karat gold.
So, with deference, and despite the freshly minted pure silver from which the majority opinion has been east, I disassociate myself from everything appearing in the opinion endeavoring to establish the existence of a special relationship between the brutalized children on the one hand and the South Carolina Department of Social Services and its case workers on the other. Were the question before us, we should have to investigate whether the “special relationship” due process contention could hold water in the absence of the South Carolina legislation. Parental control of the destiny of a child may, in general, constitute so important a right that the Supreme Court might determine that a constitutional duty simply is not imposed on any state or local government employee who learns of suspected abuse to take steps to insure that a child apparently brutalized is removed from parental custody or otherwise guarded against violence from the parents.
Second, assuming that, absent statute, no right exists under the Fourteenth Amendment, we should, nevertheless, have further to decide whether the South Carolina statute brings about a constitutional right of affirmative protection. Neither of those two questions is easy of resolution. The cases supporting the majority’s conclusion that there is a right (though admittedly rendered inapplicable here because of the existence of a good faith immunity defense) generally partake of the characteristic called “dicta”. They are ones which assume there is a right, but find it not applicable or not violated on the facts of the cases themselves.
Accordingly, prudence dictates to me that I limit my participation in the majority opinion to concurrence in the proposition which all panel members accept: namely, that, whether or not a constitutional right to affirmative protection exists, it manifestly was not established clearly enough to permit recovery at the time that the alleged deprivations occurred. My concurrence consequently rests solely on the uncontrovertible existence in each of the cases of good faith immunity as a defense against liability under 42 U.S.C. § 1983 .