Amicus Curiae Brief — DeShaney v. Winnebago County Dept. of Social Servs.

S Supreme Court, U.S.

No. 87-154 FILED

IN THE AuG 12 1908

F.SPANIOL, te

Supreme Court of the United States

October Term, 1987

JOSHUA DeSHANEY, a Minor, by his Guardian ad Litem, and

MELODY DeSHANEY,

Petitioners,

Vv.

WINNEBAGO COUNTY DEPARTMENT OF SOCIAL SERV-

ICES; WINNEBAGO COUNTY; ANN KEMMETER and

CHERYL STELSE,

Respondents.

Brief of the States of New York, Connecticut, Maryland,

Oregon, Pennsylvania and Wisconsin as Amici Curiae in

Support of Respondents

ROBERT ABRAMS

Attorney General of the State of New York

Attorney for The State of New York as

Amicus Curiae

The Capitol

Albany, NY 12224

(518) 474-6697

O. PETER SHERWOOD

Solicitor General

Counsel of Record

PETER H. SCHIFF

Deputy Solicitor General

MICHAEL S. BuskuUS

Assistant Attorney General

of Counsel

Dated: August 9, 1988

(Additional List of Counsel on Inside Cover)

JOSEPH I. LIEBERMAN

Attorney General of Connecticut

30 Trinity Street

Hartford, CT 06106

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

7 North Calvert Street

Baltimore, MD 21202

DAVE FROHNMAYER

Attorney General of Oregon

200 Justice Building

Salem, OR 97310

Leroy S. ZIMMERMAN

Attorney General of Pennsylvania

Strawberry Square

Harrisburg, PA 17120

DONALD J. HANAWAY

Attorney General of Wisconsin

CHARLES HOORNSTRA

Assistant Attorney General

P. O. Box 7857

Madison, WI 53707

Table of Contents.

Page

EEE l

ccc sense cccceccccccce 4

ARGUMENT:

Point | This case may be decided, and the judg-

ment below affirmed, on the narrow ground

that social services caseworkers (and their su-

pervisors) perform classic quasi-judicial tasks,

and hence, are protected by absolute immu-

nity from money damages liability.......... 6

Point II Due process is not implicated by alleged

shortcomings in supervisory and monitoring

services of child protective caseworkers, at

least where no custodial ‘‘control’’ over chil-

EEE 11

A. The custodial cases are not controlling... .. 1]

B. Special factors in the family law area ...... 12

C. Prior precedents do not support liability and,

in fact, demonstrate that no liability should

NT eva wsseccoccces 15

EE EE 2!

il.

TABLE OF AUTHORITIES.

CASES: Page

Archie v City of Racine, 847 F2d 1211 (7th Cir 1988)

SE db ian ids deterkeeuare eee 20

Baez v Hennessy, ___ F2d ____, No. 87-7834 (2d

Cae Ge tity WOM sn ckccacntevncéeddusaccs 7

Bailey, Estate of, by Oare v County of York, 768 F2d

6c KencGdcudecciedlscun, 17

Baker v McCollan, 443 US 137 (1979).......... 18, 19

Briscoe v LaHue, 460 US 325 (1983).............. 7

Butz v Economou, 438 US 478 (1978)......... 8, 9, 10

City of St. Louis v Praprotnik, _._ US ____, 108 S

Se 66 d.nas bbdc acnsk eee 7

C.L. v Olson, 143 Wis 2d 701, 422 NW2d 614 (1988).. 8

Daniels v Williams, 474 US 327 (1986).......... 17, 18

Davidson v Cannon, 474 US 344 (1986) ........... 18

Dewey v Des Moines, 173 US 193 (1899) .......... 7

DeShaney v Winnebago County, 812 F2d 298 (7th

Ge GPA seth icurcaduvesaaueeie es 16, 17

Doe v County of Suffolk, 494 F Supp 179 (EDNY

DEE 0468 nuvedasdeadse viel aaseeeeas 9

Enis, In re, 121 Ill 2d 124, 520 NE2d 362, 117 Ill Dec

Ge Gb bn bndaecsenkanebesieeees 13

Estelle v Gamble, 429 US 97 (1976)............. 11, 12

Evans v Dillahunty, 711 F2d 828 (8th Cir 1983).... 8

Harpole v Arkansas Dept. of Human Services, 820

F2d 923 (8th Cir 1987)...........0 cece eee 17

Hendricks v State of Oregon, 67 Or App 453, 678

P2d 759, lv denied 297 Or 228, 683 P2d 91

GO «co vb ec eccedsecsesescoesvesceveses 8

Hennessey v State of Washington, Dept. of Social

and Health Services, 627 F Supp 137 (ED Wa

PD cht vduancnétsesen0 case Rucedbeunenes 9

Home Tel. & Tel. Co. v Los Angeles, 227 US 278

SA 60a 6b boc dee dnsdbecusecassteestcees 15

Hudson v Palmer, 468 US 517 (1984) ............. 12

Hunter v Bd of Ed, 292 Md 481, 439 A2d 582 (1981). 20

Illinois v Gates, 462 US 213 (1983) ............... 7

Imbler v Pachtman, 424 US 409 (1976)........ 7,9, 10

Johnson v Glick, 481 F2d 1028 (2d Cir), cert. denied

sub nom. John v Johnson, 414 US 1033 (1973). 16

Jones v Phyfer, 761 F2d 642 (11th Cir 1985)....... 17

Marie B, Matter of, 62 NY2d 352, 477 NYS2d 87,

GS GR ee GO o's bb ota cide tedacdsenvs 13

Martinez v California, 444 US 277 (1980).......... 19

iv.

McClary v O’Hare, 786 F2d 83 (2d Cir 1986) ...... 16

Midamerica Trust Co. v Moffatt, 158 Ill App 3d 372,

511 NE2d 964, 110 Ill Dec 787 (Ill App 1987) 9

Monroe v Pape, 365 US 167 (1961) ............... 15

Nelson v Missouri Osteopathic Foundation, 626 F

Supp 604 (WD Mo 1985).................. 8

Oklahoma City v Tuttle, 471 US 808 (1985)........ 7

Parham v J.R., 442 US 584 (1979)................ 13

Pate v Alabama Board of Pardons & Paroles, 409 F

Supp 478 (MD Ala 1976), affd no opn, 548

Fae Be Ge GE WF s vc cbccccccccccceces &

Paul v Davis, 424 US 693 (1976) ................. 18

Payton v United States, 679 F2d 475 (Sth Cir 1982) 18

Pembaur v Cincinnati, 475 US 469 (1986) ......... 7

Peter W. v San Francisco Unified School Dist., 60

Cal App 3d 814, 131 Cal Rptr 854 (1976).... 14

Procunier v Navarette, 434 US 555 (1978) ......... 7

Purdy v Public Administrator of County of West-

chester, 72 NY2d 1, 1988 WL 53002 (1988)... 18

Santosky v Kramer, 455 US 745 (1982)............ 13

Scott County Master Docket, In re, 672 F Supp | 152

I 9, 20

Screws v United States, 325 US 91 (1945).......... 16

Sellars v Procunier, 641 F2d 1295 (9th Cir) cert. de-

nied, 454 US 1102 (1981)...........2-5545. 8

Sherrill v Wilson, 653 SW2d 661 (Mo 1983)........ 18

Smith v Eley, 675 F Supp 1301 (D Utah 1987) ..... 20

Stanley v Illinois, 405 US 645 (1972).............. 13

Stump v Sparkman, 435 US 349 (1978)............ 7

Tarter v State of New York, 68 NY2d 511, 510

NYS2d 528, 503 NE2d 84 (1986) ........... 8

Tennessee v Garner, 471 US 1 (1985) ............. 15

Tobin v Grossman, 24 NY2d 609, 301 NYS2d 554,

249 NE2d 419 (1969)... 2.2... cece eee eee 20

Torres v Little Flower Children’s Services, 64 NY2d

119, 485 NYS2d 15, 474 NE2d 223 (1984),

cert. denied, 474 US 864 (1985) ............ 14

Tubell v Dade County Public Schools, 419 So 2d 388

CU RD Fie ccc ccescccsccnccccccsscons 14

Walden v Wishengrad, 573 F Supp 1115 (WDNY

1983), affd, 745 F2d 149 (2d Cir 1984)..... 9, 10

Walker v Rowe, 791 F2d 507 (7th Cir), cert. denied,

pie kf | PrreTT TT TT Te 16

Wells v Walker, 671 F Supp 624 (ED Ark 1987).... 17

vi.

Page

Whelehan v County of Monroe, 558 F Supp 1093

PE SN cs dou dusdsescicnesbances 9, 10

Whitley v Albers, 475 US 312 (1986).............. 11

Wisconsin v Yoder, 406 US 205 (1972) ............ 13

Youngberg v Romeo, 457 US 307 (1982)..... 11, 12, 18

UNITED STATES CONSTITUTION:

id oc Kod eeesentaseness 16

Fourteenth Amendment ..................... 3

FEDERAL STATUTES:

Ee eee eee pe 3,4

Se PE i scKicdde Chi cedkneeeeseabens 3, 6

MISCELLANEOUS:

Currie, Positive and Negative Constitutional

Rights, 53 U Chi L Rev 864 (1986) ......... 16

Livermore, Malmquist & Meehl, On the Justi-

fications for Civil Commitment, 117 U Pa L

eT Se given e ind ewekeune acdhases 14

Prosser & Keeton, Law of Torts (Sth ed 1984),

DP ed uvtecud sUkbN ceeebbansdce das 10

Restatement, Second, of Torts § 314.......... 17

Vil.

Restatement, Second, of Torts § 319.......... 17

Stern, Gressman & Shapiro, Supreme Court

Practice (6th ed 1986), § 6.26.............. 7

Supreme Court Rule 36.4...............2045. l

Tyrell, Prediction of Dangerousness, Vol. 34,

No. 1, Medical Trial Quarterly 24 (1987) .... 14

No. 87-154

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

JOSHUA DESHANEY, a Minor, by his Guardian ad

Litem, and Melody DeShaney,

Petitioners,

Vv.

WINNEBAGO COUNTY DEPARTMENT OF SOCIAL SERVICES;

WINNEBAGO COUNTY; ANN KEMMETER AND CHERYL

STELSE,

Respondents.

Brief of the States of New York, Connecticut,

Maryland, Oregon, Pennsylvania and

Wisconsin as Amici Curiae in Support of Respondents

Interest of Amici Curiae

Amicus State of New York and the other amici States

respectfully submit this brief pursuant to Supreme Court

Rule 36.4 in support of respondents. The amici urge this

Court to affirm the judgment of the court below.

The amicus State of New York indirectly funds a signif-

icant portion of the child protective caseworker activity in

2

New York State. While many of these caseworkers are

county employees, State revenue sharing assists in the

provision of these services. Additionally, the State,

through its Department of Social Services, provides train-

ing and continuing education for caseworkers. The State

plays an indirect role in the quality of care furnished by

the caseworkers by distribution of a Child Protective

Services Program Manual. This Manual, which reprints

relevant statutes, regulations and forms for court pro-

ceedings, also enumerates guidelines and procedures for

child protective caseworkers. The Manual suggests

methods of investigating and documenting suspected inci-

dents of child abuse and maltreatiment so that available

evidence can be presented in usable form to prosecutors

and courts. The State Department of Social Services also

maintains a computerized, centralized register of child

abuse allegations and provides this information to local

caseworkers and courts. In sum, the State is significantly

involved in overseeing the provision of child care protec-

tive services, even though local government employees

generally are responsible for actual delivery of these serv-

ices in the field.

While the details of the programs and statutes vary

from state to state, the description of New York’s child

care protective services system is generally similar to those

in the other amici states.

Thus, amici have a financial, a professional and an op-

erational interest in this case which involves potential

“constitutional tort’’ liability of child protective case-

workers and their supervisors. Therefore, this brief ex-

presses the concerns of amici’s child protective case-

workers, as well as the interests of state and local govern-

ment agencies.

3

The amici submit that child protective officials, such as

caseworkers and their supervisors, should not be exposed

to money damages liability under 42 USC § 1983 (and, de-

rivatively, to attorneys’ fee awards under 42 USC § 1988),

when, as here, the caseworkers do not themselves have

physical custody of a child subsequently abused by a par-

ent in lawful custody of the child. Regardless of how

characterized, omissions of child protective caseworkers

to take action to upset the strong presumption of parental

custody of children should not be actionable under 42

USC § 1983 as a violation of the due process clause of the

Fourteenth Amendment.

The amici recognize the unfortunate tragedy that was

inflicted by an abusive parent upon the infant petitioner

in this case. Yet, in this and similar cases, governmental

providers of supportive social services are limited—by

constitutional constraints, by statutory provisions, by

court decisions on burdens of proof as to custody of chil-

dren and termination of parental rights, by heavy case-

loads, and by availability of staff and resources—from

taking action in every case which, in hindsight, might

have prevented injury if parental rights were challenged,

contested or deprived. More importantly, child protective

caseworkers, despite the best of motivation and training,

are unable reliably to predict whether parents will abuse

children.

Therefore, amici respectfully submit this brief to artic-

ulate the problems and concerns of the child protective

caseworkers and supervisors whose ability to discharge

their professional responsibilities is threatened by peti-

tioners’ lawsuit now before this Court.

4

Summary of Argument

While the court below properly affirmed the dismissal

of the complaint, it did so on the basis that the due proc-

ess clause does not furnish a ‘‘constitutional tort’’ remedy

against non-custodial governmental actors, even for er-

rors or omissions claimed to involve gross negligence, de-

liberate indifference, or willful and wanton misconduct.

We agree with that result, but we first discuss another

sound and simple reason why liability could not exist in

this case. In our view, regardless of whether petitioner’s

allegations might otherwise state a cause of action, they

are nonetheless an insufficient predicate for liability, as

absolute immunity should insulate child protective case-

workers and their supervisors from liability.

In many respects, the job of a child protective case-

worker resembles that of a prosecutor or parole officer.

Each performs a quasi-judicial task of measuring facts

and circumstances against a set of general criteria (e.g.,

constitutional, statutory and regulatory). Each must de-

cide whether evidence, often circumstantial, is sufficient

to justify formal charges. Each must be mindful of the

burdens of proof the courts interpose. Each must temper

judgmental, discretionary decisions with the practical

consequences that time and effort devoted to presenting

or prosecuting unsustainable charges will divert resources

from other cases and other responsibilities. Yet, because

none of these officers are able rel.»bly to predict future

human behavior, none of them are or should be subject to

federally imposed liability for the performance of their

quasi-judicial tasks. All the more so should child protec-

tive caseworkers not be exposed to damages liability un-

der 42 USC § 1983 because of the overwhelming constitu-

tional, statutory and regulatory presumptions in favor of

parental custody and decisionmaking authority.

5

Moreover, a rule of liability for social services case-

workers would place them in the untenable situation of

being sued for either doing too much or too little; in the

former case by parents deprived of custody even tempo-

rarily, under an aggressive policy of initiating child pro-

tective proceedings; in the latter case by children like peti-

tioner.

Alternatively, and apart from questions of quasi-

judicial absolute immunity, the failure adequately to fur-

nish child protective services in a non-custodial context,

simply is not actionable under the due process clause.

Cases involving direct institutional custody, such as men-

tal health facilities and/or prisons, are readily distinguish-

able. A non-custodial situation, with periodic visits or in-

vestigations of allegations of child abuse, simply lacks

both the actual control, as well as the theoretical oppor-

tunity for control, which is central to the finding of lia-

bility in institutional settings of prisons or mental hygiene

facilities.

More generally, as the court below recognized, govern-

mental services which seek to monitor, supervise or regu-

late conduct of third parties cannot guarantee safety.

Government may assist in the enhancement of relative

safety of others, but the due process clause does not fur-

nish a constitutional guarantee of safety from harm.

There is no element of governmental “abuse of power” in

this type of case, which, at most, involves a failure to fur-

nish more or better protection from harm inflicted by

third parties.

There are also other institutional concerns which coun-

sel restraint before a broad avenue of new liability should

be recognized. It will almost always be possible to state a

cause of action on the pleadings if gross negligence or

recklessness were deemed actionable, because almost any

6

error Or Omission can be characterized in those terms. It

will almost always be possible to allege that the govern-

ment, by its inaction, failed to prevent a harm perpetrated

by a third party. Government, which merely provides

services, will be set up as a guarantor of safety. The feder-

alization of tort law, even in the present context, will in-

vite a flood of new federal lawsuits across the spectrum of

garden-variety personal injury actions. Moreover, the

prospect of an award of attorneys’ fees pursuant to 42

USC § 1988 offers a strong incentive to litigate these

claims in federal court.

In short, the consequences of federalizing tort law are

profound indeed. The sympathetic facts of this case can-

not be denied, but sympathy should not substitute for

law, especially when, as here, to do so would be to open a

Pandora’s Box of liability.

The judgment of the court below should be affirmed.

ARGUMENT

POINT I

This case may be decided, and the judgment below af-

firmed, on the narrow ground that social services case-

workers (and their supervisors) perform classic quasi-ju-

dicial tasks, and hence, are protected by absolute

immunity from money damages liability.

While we believe the court below properly decided that

allegations of gross negligence, aggravated misconduct,

deliberate indifference or egregious misconduct in the

failure to provide adequate governmental services were

not actionable as a violation of due process, that question

need not be answered in this case. We believe that the

>

judgment below can—and we suggest, should—be af-

firmed on an equally sound, albeit more limited ground

that child protective caseworkers (and their supervisors)

perform prosecutorial quasi-judicial tasks, as to which a

rule of absolute immunity’ precludes money damages lia-

bility.

This Court has long held that common law immunity

principles apply with equal force and effect in 42 USC

§ 1983 actions involving claims of constitutional depriva-

tions. Jmbler v Pachtman, 424 US 409, 424-426 (1976)

(prosecutors); Stump v Sparkman, 435 US 349, 356-357

(1978) (judges); Briscoe v LaHue, 460 US 325, 329-336

(1983) (witnesses). In each of these cases, this Court has

examined common law immunities and fashioned a rule

of section 1983 damages immunity comparable to the

'This Court can address the immunity issue, even though it was

not addressed below, for several reasons. First, in comparable cir-

cumstances, this Court granted certiorari on the broader question of

whether negligent interference with an inmate’s outgoing mail was ac-

tionable, but decided the case on the narrower ground of qualified

immunity. Procunier v Navarette, 434 US 555, 559-560 & n 6 (1978).

Second, the question of whether immunity defeats an otherwise ac-

tionable claim is reachable as a question incidental to those framed in

the certiorari petition. See, Stern, Gressman & Shapiro, Supreme

Court Practice (6th ed 1986), § 6.26. Third, the issue may be reached

under the “‘mere enlargement"’ rule by which issues treated below

may be expanded in this Court to encompass logically connected mat-

ters. See Dewey v Des Moines, 173 US 193, 198 (1899); /ilinois v

Gates, 462 US 213, 248 (1983) (White, J., concurring) (as to defenses

to federal claims).

*This case does not appear to implicate any genuine issues of

municipal “‘policy’’, as that term of art is discussed in the cases. See

City of St. Louis v Praprotnik, US , 108 S Ct 915 (1988);

Oklahoma City v Tuttle, 471 US 808 (1985); Pembaur v Cincinnati,

475 US 469 (1986). Because none of the allegations in the complaint

implicate any “‘policy” of the two municipal entity defendants, the

judgment as to them should be affirmed for failure to state a cause of

action. See, Baez v Hennessy, F2d , No. 87-7834 (2d Cir

July 27, 1988), slip opn at 5069-5074 & n 2. Accordingly, this amicus

brief focuses on the theory of liability directed at caseworkers and

their supervisors.

8

common law rule. With respect to absolute immunity this

Court has consistently held that it is the nature of the gov-

ernmental actor’s function, not the employment title,

which is the dispositive inquiry. Butz v Economou, 438

US 478, 515 (1978); Imbler, 424 US at 424-425.

Applying the common law standards which define the

tasks of quasi-judicial officers, the work of child protec-

tive caseworkers and their supervisors is entitled to abso-

lute immunity. Prosecutors and administrative agency

employees performing similar tasks receive absolute im-

munity for several reasons. In the nature of things, errors

can occur because decisions must be made, yet the facts

before the decisionmaker may be tentative, sharply con-

flicting, or incomplete. Prosecutors and their administra-

tive law counterparts need breathing space so they may

make independent, reasoned decisions without fear of lia-

bility. See Butz, 438 US at 512-513. The same rationale

has been held to apply to parole officers who make deci-

sions in the field with respect to supervision and/or

whether to initiate parole revocation proceedings. Sellars

v Procunier, 641 F2d 1295, 1299-1300, 1301-1303 (9th

Cir), cert. denied, 454 US 1102 (1981); Evans v Dil-

lahunty, 711 F2d 828 (8th Cir 1983); Pate v Alabama

Board of Pardons and Paroles, 409 F Supp 478, 479 (MD

Ala 1976), affd no opn, 548 F2d 354 (Sth Cir 1977); Tar-

ter v State of New York, 68 NY2d 511, 510 NYS2d 528,

503 NE2d 84 (1986); Nelson v Missouri Osteopathic

Foundation, 626 F Supp 604, 607 n 2 (WD Mo 1985); see

also, Hendricks v State of Oregon, 67 Or App 453, 678

P2d 759, /v denied, 297 Or 228, 683 P2d 91 (1984) (same

result on rationale of ‘“‘discretionary function’’ exception

to tort liability); C.L. v Olson, 143 Wis 2d 701, 422

NW2d 614 (1988) (same result on rationale of ‘‘public of-

ficer”’ immunity).°

*Moreover, as in the case of parole boards (which did not exist in

the Civil War era when the predecessor to section 1983 was enacted),

the courts will have to reason by analogy to decide the immunity

questions, since child protective services caseworkers were not an or-

ganized profession at the time following the Civil War. See Butz, 438

US at 512-517; Sellars, 641 F2d at 1298-1299 & n 6.

9

The rationale which furnishes absolute immunity for

prosecutors and parole officers applies with equal force to

child protective caseworkers, because the same type of

judgmental, deliberative decisionmaking is involved.

There is no functional difference between the decision-

making process of child protective caseworkers, parole of-

ficers and administrative agency prosecutors: each meas-

ures facts, including tentatively-determined facts, against

generalized criteria (e.g., constitutional, statutory and

regulatory provisions) to decide whether or what sanc-

tions, penalties or proceedings to initiate, adjudicate or

terminate. Each must necessarily make inherently subjec-

tive appraisals of the credibility and reliability of wit-

nesses and suspects. Each is equally capable of coming to

the wrong conclusion in a particular case, because of

flawed information, mistake in judgment or other error.

Applying the teachings of this Court that the function

of the decisionmaker is the dispositive factor (Butz, 438

US at 513; Jmbler, 424 US at 424), the majority of courts

to consider the question have held that child protective

caseworkers (and their supervisors) are entitled to abso-

lute immunity from money damages liability. Walden v

Wishengrad, 573 F Supp 1115, 1116-1117 (WDNY 1983),

affd, 745 F2d 149, 151-153 (2d Cir 1984) (absolute immu-

nity on analogy to prosecutorial immunity); Whelehan v

County of Monroe, 558 F Supp 1093, 1098-1099 (WDNY

1983) (same); Hennessey v State of Washington, Dept. of

Social and Healtk Services, 627 F Supp 137, 140 (ED Wa

1985) (same); Jn re Scott County Master Docket, 672 F

Supp 1152, 1171 n 5 (D Minn 1987) (citing list of cases);

see also, Midamerica Trust Co. v Moffatt, 158 Ill App 3d

372, 511 NE2d 964, 110 Ill Dec 787 (Ill App 1987) (public

officer immunity precluded suit); but see, Doe v County

of Suffolk, 494 F Supp 179, 181-182 (EDNY 1980) (case-

worker entitled only to qualified immunity on analogy to

police officer). Some of the considerations recognized as

10

justifications for absolute immunity for these caseworkers

include the fact that, like prosecutors, these professionals

must act under serious constraints of time and informa-

tion (Whelehan, 558 F Supp at 1098); that the threat of

liability will shade decisionmaking (Hennessey, 627 F

Supp at 140; Whelehan, 558 F Supp at 1099); and

that—because of the potential for many colorable

claims—a standard of only qualified immunity would not

adequately protect caseworkers (Walden, 745 F2d at 152;

Whelehan, 558 F Supp at 1099). We agree with the rea-

soning in these cases and urge this Court to follow them

and to adopt a rule of absolute immunity for child protec-

tive caseworkers and their supervisors.

Neither prosecutors, administrative agency prosecutors,

parole officers nor child protective caseworkers are, or

should be, exposed to money damages liability. Only ab-

solute immunity affords these decisionmakers the breath-

ing space necessary to perform their often difficult tasks

free of harassment or intimidation. Butz, 438 US at

512-513; Imbler, 424 US at 422; Walden, 745 F2d at

151-153. Without absolute immunity, these decision-

makers will inevitably be hesitant to act decisively, partic-

ularly in difficult cases. Butz, 438 US at 512-513: Jmbler,

424 US at 422-423.

For purposes of applying absolute immunity for these

prosecutorial functions, it makes no difference that the

decisionmaker made an error of fact, law, or judgment:

absolute immunity bars all such suits. Prosser & Keeton,

Law of Torts (Sth ed 1984), § 132, p 1058. Rather, it is the

nature of the function that is dispositive of the immunity

question. /mbler, 424 US at 424-426.

Therefore, purely on the basis of the nature of the deci-

sionmaker’s functions, child protective caseworkers (and

their supervisors) should be entitled to absolute immunity

from money damages. The judgment below should be af.

firmed on that basis.

POINT Il

Due process is not implicated by alleged shortcomings

in supervisory and monitoring services of child protective

caseworkers, at least where no custodial ‘‘control’’ over

children is involved.

A. The Custodial Cases are not Controlling

Petitioner and amici in support of petitioner rely

heavily upon cases recognizing some due process protec-

tions against the risk of injury in a custodial context

within an institution. Those cases are inapposite. There is

no occasion in this case for this Court to address the

scope of the due process clause in the context of such cus-

todial situations. This Court has already addressed some

of the issues in an institutional setting where residents (in-

mates or patients) receive care, treatment or habilitation

under a roof owned by a governmental entity, and under

the direct—and virtually constant—supervision of gov-

ernmental employees. In those limited settings, which are

not factually comparable to the case at bar, this Court has

held some measure of liability exists for the protection of

inmates or mental patients from harm inflicted by other

residents or staff. See Estelle v Gamble, 429 US 97,

101-108 (1976); Youngberg v Romeo, 457 US 307,

314-325 (1982); compare, Whitley v Albers, 475 US 312

(1986) (shooting of prisoner during quelling of riot did

not violate ban on cruel and unusual punishment or sub-

stantive due process absent proof of unnecessary and

wanton infliction of pain).

12

The institutional cases stand on an entirely different

footing from non-custodial situations. Because non-

custodial situations neither offer the same access to infor-

mation on the existence of hazards to others, nor the op-

portunity constantly to monitor the source of the poten-

tial harm, there is no comparable ability of governmental

decisionmakers to take swift and decisive action to avert

threatened harm. In an institutional setting, supervisors

can more readily place potential aggressors or victims in

separate housing. Furthermore, such an institution by its

nature is staffed around the clock. Moreover, privacy

rights of prisoners and mental patients, while they exist to

some degree (Hudson v Palmer, 468 US 517, 521, 524

[1984]; Youngberg, 457 US at 315-316, 324), are consid-

erably less of a barrier to oversight and monitoring than

the parental rights in the social worker setting. Simple de-

vices like locks on doors and TV cameras work reasonably

effectively when the governmental actor owns and oper-

ates the premises; considerations of privacy, constitu-

tional and otherwise, positively preclude such prophylac-

tic devices in the context of governmental oversight of

third parties, such as the parents of the infant petitioner.

Thus, precedenis fashioning limited liability in an insti-

tutional context simply cannot form the basis for liability

in the social services caseworker context. Therefore, de-

spite the reliance by petitioner on Youngberg and Estelle,

those cases do not justify the expansion of liability in

these circumstances.

B. Special Factors in the Family Law Area

Whatever may be said of custodial situations, insofar

as a custodial element of ‘‘control”’ is a factor favoring

possible liability, the present case lacks even a semblance

of such control. Moreover, here, there is an additional—

13

and compelling—countervailing consideration which

counsels strongly against the recognition of any liability:

the required deference to parental decisionmaking. This

Court has consistently required the States to presume the

right of a parent to the custody of his or her child; to

prove unsuitability as a parent by clear and convincing ev-

idence; and to defer, to a very large degree, to parental

decisions about the proper upbringing of a child. See, e.2.,

Santosky v Kramer, 455 US 745, 764 (1982) (burden of

proof to terminate parental rights is the high ‘‘clear and

convincing evidence’”’ standard); Wisconsin v Yoder, 406

US 205 (1972) (right of Amish parents to keep their chil-

dren out of public school after the eighth grade); Stanley

v Illinois, 405 US 645 (1972) (invalidating statute that

conclusively presumed that unwed fathers were unfit par-

ents and thus incompetent to raise children); Parham v

J.R., 442 US 584, 603 (1979) (state may voluntarily place

child in mental institution at parent’s request, with only

informal procedures, without the necessity of adversarial

proceedings with representation for the child). Collec-

tively these and other well-established decisions limit the

ability of child protective caseworkers to take decisive ac-

tion in every case which hindsight shows action may have

been warranted. See Matter of Marie B., 62 NY2d 352,

477 NYS2d 87, 465 NE2d 807 (1984) (adjournment in

contemplation of dismissal [‘‘ACD’’] of child neglect pro-

ceedings could not constitutionally be equated with unfit-

ness of parent, even when parent voluntarily consented to

ACD and indisputably violated the terms of the ACD); Jn

re Enis, 121 Ill 2d 124, 520 NE2d 362, 117 Ili Dec 201

(1988) (statute authorizing termination of parental rights

merely upon actual proof of physical abuse by a prepon-

derance of evidence did not comport with due process

protections for parental rights).

14

The cases which provide constitutional protections in

favor of parental rights and parental custody demonstrate

that there is no simple, automatic remedy for child pro-

tective caseworkers to employ any time there is a suspi-

cion—or even equivocal evidence—of child abuse. Be-

cause of the procedural and substantive protections in

favor of parents, child protective caseworkers must be re-

alistic in their assessments of what type of evidence will

be deemed by courts as sufficient to sustain allegations of

child abuse. Moreover, it is highly doubtful that even the

best-educated and properly-motivated social services case-

workers would accurai.'’ predict future parental abuse of

children. The picdiction of future human behavior is too

inexact a science for a meaningful, workable standard of

care to be articulated, much less to be applied in each

case. Tyrell, Prediction of Dangerousness, Vol. 34, No. 1,

Medical Trial Quarterly 24, 31-37 (1987) (citing extensive

professional studies of the problem in the psychiatric

field); see also, Livermore, Malmquist & Meehl, On the

Justifications for Civil Commitment, 117 U Pa L Rev 75,

84 (1968).* Thus, it is inappropriate to impose federalized

tort liability in these circumstances.

Other practical factors demonstrate that the imposition

of liability against caseworkers and their supervisors

would be unfair. The caseloads are staggering. To cite

New York as an example, there are only about 2,000 child

protective services caseworkers. Not counting existing

“Before courts fashion new liabilities, it is appropriate to con-

sider whether a workable standard of care exists. For example, be-

cause it is gencrally agreed that no consensus exists in the educational

field on the appropriate way to educate children, the courts have uni-

formly rejected the tort of educational malpractice. Torres v Little

Flower Children’s Services, 64 NY2d 119, 485 NYS2d 15, 474 NF2d

223 (1984), cert. denied, 474 US 864 (1985): Peter W. v San Francisco

Unified School Dist., 60 Cal App 3d 814, 131 Cal Rptr 854 (1976):

Tubell v Dade County Public Schools, 419 So 2d 388 (Fla App 1982);

Hunter v Bd of Ed, 292 Md 481, 439 A2d S82 (1981).

a et ae tes “ete

15

open files, the numbers of new “‘reports’’ of child abuse

or maltreatment have steadily increased. There were

95,626 such complaints or reports in 1986; 105,059 in

1987; and 63,608 for the first six months of 1988. Each

caseworker inevitably must make judgments about which

parents are more likely to abuse their children. But, given

the inability to predict future human behavior, as well as

the strong presumptions in favor of parental custody and

parental decisionmaking, it is simply unfair to burden so-

cial services professionals with liability for the regrettable

episodes of child abuse that are not prevented.

C. Prior Precedents Do Not Support Liability And, In Fact,

Demonstrate That No Liability Should Exist Here.

A review of the leading ‘‘constitutional tort’’ cases

demonstrates that, with the possible limited exception of

the prison and mental health direct custody cases (supra,

subpoint ‘‘A’’, pp 11-12), the only due process theory of

liability ever accepted by this Court as a justification for

awarding damages has been abuse of governmental

power. The cases sustaining liability have involved the use

of physical force by a governmental actor against a citi-

zen, or the use of a weapon, or some other instrumen-

tality. Yet, in every case in which liability was upheld

(either on the pleadings or afte. verdict), the central ele-

ment of abuse of governmental authority was present. See

e.g., Home Tel. & Tel. Co. v Los Angeles, 227 US 278,

287 (1913) (classic statement that abuse of governmental

power is the central inquiry under the Fourteenth Amend-

ment); Monroe v Pape, 365 US 167, 172 (1961) (police

barged into home in the middle of the night, without a

warrant, and forced the residents to stand naked while the

officers ransacked the house); Tennessee v Garner, 471

US 1, 7-21 (1985) (police officer fatally shot unarmed sus-

pect fleeing from a burglary location) (damages liability

16

justified under the Fourth Amendment); see a/so, Screws

v United States, 325 US 91 (1945) (it is a violation of the

criminal law counterpart to 42 USC § 1983 for police to

beat a prisoner to death); Johnson v Glick, 481 F2d 1028,

1033 (2d Cir) (Friendly, J.), cert. denied sub nom. John v

Johnson, 414 US 1033 (1973) (articulating oft-cited test of

justifications for and measurement of the use of force in

action by pretrial detainee against police). These cases

represent proper and necessary constitutional limitations

on the affirmative use of governmental power against in-

dividuals. The abuse of power rationale operates as a

meaningful deterrent against ill-motivated or overly-

exuberant governmental actors. The substantive due proc-

ess principles governing those cases are not implicated

here.

But recognition of the historic limitations which due

process imposes to prevent governmental abuse of power,

does not imply that liability should be imposed on the

basis of an omission to furnish more or better affirmative

services. There is a fundamental and dispositive distinc-

tion between these two types of cases. These distinctions

are ably described in Judge Posner’s opinion in the case at

bar, DeShaney v Winnebago County, 812 F2d 298,

301-304 (7th Cir 1987), and in the other lower court deci-

sions cited at page 301. See also, Currie, Positive and

Negative Constitutional Rights, 53 U Chi L Rev 864

(1986); McClary v O’Hare, 786 F2d 83, 88-89 (2d Cir

1986) (action for wrongful death could not be maintained

as federal civil rights claim, where the event was an acci-

dent, neither the occurrence of which nor the particular

victim of which could have been predicted); Walker v

Rowe, 791 F2d 507, 509-512 (7th Cir), cert. denied, 107 S

Ct 597 (1986) (due process does not require a state to pro-

vide its employees with safe working conditions or to pro

tect them from murderers).

17

Petitioner and amicus on his behalf place considerable,

but misplaced, reliance on the common law precept of

‘special relationships’’. Citing the Third Circuit decision

in Estate of Bailey by Oare v County of York, 768 F2d

503 (3d Cir 1985), petitioners equate knowledge of poten-

tial risk with a constitutional duty to prevent the harm.

That theory simply has no place in the due process juris-

prudence. The better view is that due process does not

embrace a governmental obligation, to be honored at the

peril of constitutional tort damages, to protect citizens

from crime. Judge Posner’s thoughtful opinion for the

Seventh Circuit in this case explains that due process is

not a mandate for the government to provide services to

its citizens; rather, it is generally viewed as a limitation

against arbitrary or abusive exercises of governmental

power. DeShaney, 812 F2d at 303-304. Other lower courts

that have addressed this or related concerns have similarly

concluded . .at state tort remedies, not section 1983 law-

suits, are the appropriate remedy for injured persons. See,

e.g., Harpole v Arkansas Dept. of Human Services, 820

F2d 923, 928 (8th Cir 1987) (governmental social services

caseworker who misjudged ability and fitness of parent to

care for child with physical ailments was not liable to

grandparent on special relationship theory); Wells v

Walker, 671 F Supp 624, 626-627 (ED Ark 1987) (person

injured by parolee); Jones v Phyfer, 761 F2d 642 (11th

Cir 1985) (person injured by furloughed prisoner); see

also, Daniels v Williams, 474 US 327, 335-336 (1986) (al-

ternative holding or dictum which rejects the common-

law ‘“‘special relationship” test of Restatement, Second,

of Torts § 314, as a basis for a constitutional tort under

the due process clause).

In any event, the purported constitutional tort theory

advanced by petitioner should be rejected for the further

reason that ii would extend liability even beyond common

18

law bounds. Section 319 of the Restatement, Second, of

Torts permits a court to find a ‘‘special relationship”’ only

if real—rather than conjectural and indirect—control (ab-

sent here) existed. See Sherrill v Wilson, 653 SW2d 661,

666-667 (Mo 1983); Payton v United States, 679 F2d 475,

479-483 (Sth Cir 1982); see also, Purdy v Public Adminis-

trator of County of Westchester, 72 NY2d 1, 1988 WL

53002 (1988) (operators of health care facility did not

have enough ‘“‘control’’ over conduct of voluntary patient

to justify liability for tort committed by patient off the

premises).

Finally, even if the Court were inclined to recognize a

duty in the present context, we suggest that permitting a

section 1983 cause of action would tend to convert this

civil rights statute into a broadly-based federal tort rem-

edy. While this Court has not yet spoken to the issue of

constitutional tort liability couched in terms of reckless-

ness or gross negligence (see Daniels v Williams, 474 US

327, 334 n 3 [1986]), it has consistently declined to trans-

form section 1983 into a generalized federal tort law doc-

trine. See Daniels, 474 US at 329-332 (reiterating ‘‘abuse

of power’’ doctrine as core-value of the due process

clause; holding that mere negligence of sheriff’s deputy

leading to injury to prisoner was not a violation of due

process); Davidson v Cannon, 474 US 344, 347-348 (1986)

(negligent failure to protect one inmate from attack by

another, even in the face of notice of a specific threat by

an identified inmate to another identified inmate, was not

actionable as a violation of due process); Youngberg v

Romeo, 457 US 307, 317 (1982) (there is no generalized

constitutional duty of government to furnish substantive

services); Baker v McCollan, 443 US 137 (1979) (incarcer-

ation of wrong defendant, on account of

negligently-caused misidentification, was not actionable);

Paul v Davis, 424 US 693, 699-701 (1976) (circulation to

19

merchants of plaintiff’s name and picture, on police list

of “‘active shoplifters’’, even after such charges had been

dismissed, amounted only to a state tort of defamation,

not a violation of constitutional due process); Martinez v

California, 444 US 277, 281, 283-285 (1980) (state statute

conferring a defense to potential state tort law liability,

which arguably resulted in negligent release of dangerous

parolee, did not result in a deprivation of due process). As

then-Justice (now Chief Justice) Rehnquist reasoned in

Baker, 443 US at 146:

“Section 1983 imposes liability for violations of

rights protected by the Constitution, not for viola-

tions of duties of care arising out of tort law. Rem-

edy for the latter type of injury must be sought in

state court under traditional tort-law principles.

Just as ‘[mJedical malpractice does not become a

constitutional violation merely because the victim

is a prisoner,’ Estelle v Gamble, 429 US 97, 106

(1976), false imprisonment does not become a vio-

lation of the Fourteenth Amendment merely be-

cause the defendant is a state official.”’

There simply is no sound basis for federalizing tort law.

There is a jurisprudential problem of drawing the line for

liability at an appropriate and workable boundary. As

then-Judge (later Chief Judge) Breitel of the New York

Court of Appeals stated:

‘Beyond practical difficulties there is a limit to

attaining essential justice in this area. While it may

seem that there should be a remedy for every

wrong, this is an ideal limited perforce by the real-

ities of this world. Every injury has ramifying con-

sequences, like the ripplings of the waters, without

end. The problem for the law is to limit the legal

consequences of wrongs to a controllable degree.”’

20

Tobin v Grossman, 24 NY2d 609, 619, 301 NYS2d 554,

561, 249 NE2d 419, 424 (1969). Those observations are

equally applicable here.

There are several practical problems that counsel

against the recognition of liability on theories of gross

negligence or recklessness. It would almost always be pos-

sible to state a cause of action on the pleadings. Archie v

City of Racine, 847 F2d 1211, 1219 (7th Cir 1988) (en

banc) (extensive review of cases, noting that no workable

distinctions have yet been offered in this area, and con-

cluding that ‘‘[a] line that cannot be policed is not a line

worth drawing in constitutional law’’).

And, as history has demonstrated in the personal injury

area, the recognition of a novel duty leads to further, ex-

panded liability. Social services caseworkers are already

being sued by parents who allege that child removal pro-

ceedings were commenced on flimsy or inadequate evi-

dence. See, e.g., In re Scott County Master Docket, 672 F

Supp at 1194, 1198-1199; see also, Smith v Eley, 675 F

Supp 1301, 1303-1306 (D Utah 1987) (action by custodial

parent against county sheriff and deputy for assisting for-

mer spouse in gaining physical custody of child). It is no

exaggeration to suggest that every garden-variety matri-

monial matter with a fight over child custody could be-

come a federal lawsuit.

The possibilities of new avenues of federalized tort law

are merely unleashed, and certainly not exhausted, by the

family law area. Every other aspect of governmental serv-

ices could become an inviting target for a federal lawsuit

in the name of due process.

ee

21

CONCLUSION.

The judgment should be affirmed.

Dated: Albany, New York

August 9, 1988

Respectfully submitted,

ROBERT ABRAMS

Attorney General of the State of New

York

Attorney for The State of New York

as Amicus Curiae

O. PETER SHERWOOD

Solicitor General

Counsel of Record

PETER H. SCHIFF

Deputy Solicitor General

MICHAEL S. BUSKUS

Assistant Attorney General

of Counsel