# Opposition Brief — DeMaria v. Washington County > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1599%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1998 - **Citation:** 525 U.S. 816 ## Text No. 97-1902 In The Supreme Court of the United States October Term, 1997 a ANTHONY M. DEMARIA and KATHY L. DEMARIA husband and wife; TONY DEMARIA, JR.; and KOHN JOSEPH DEMARIA, by and through ANTHONY M. DEMARIA, Guardian Ad Litem WASHINGTON COUNTY; WASHINGTON COUNTY BOARD OF COMMISSIONERS DON STEPHENS MILDRED HORTON, RONALD POUND; SHERIFI DEPARTMENT OF WASHINGTON COUNTY IM NELSON AND MICHAEL WADLEY; and JOHN DOES 1 THROUGH 10 + Om Petition For Writ Of Certiorari fo The United States Court Of Appeals For The Ninth Circuit - 4 BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI € James J. Dav Attorney at Law 406 W. Franklin Street P. ©. Box 1517 Boise, Idaho 83701-1517 lelephone (208) 336-3244 Counsel of Record for emit Mart bea, TABLE OF CONTENTS Page BOR SO GIO in ok 6 che ed Oks Kee hh une i Be TOE PURPA EURO hao c ks ds oles te wok cee ce ii Jeg et me: 8 of en eee | A. STATEMENT OF FACTS... 0.5.6 ccck dc cccns. 2 B. PROCEEDINGS AND DISPOSITION IN re CEES 655i cian $9 a0 v uk SAAS ch ed ecok + SUMMARY OF ARGUMENT....................... 7 ET 2 56 ie RG Anis On oas sway uc bike cate 8 I. THE PETITION FOR WRIT OF CERTIORARI SHOULD BE DENIED BECAUSE THE ISSUE PRE- SENTED IS NOT SUFFICIENTLY IMPORTANT TO WARRANT THIS COURT’S REVIEW fl. THE PETITION FOR WRIT OF CERTIORARI SHOULD BE DENIED BECAUSE THERE IS NO LEGAL CONFLICT BETWEEN THE SECOND, EIGHTH AND NINTH CIRCUITS ON THE PAR- TICULAR ISSUE RAISED. THE PETITION ACTUALLY CHALLENGES THE NINTH CIR- CUIT’S CORRECT APPLICATION OF DUET 4s 5d eee Ais Ub ewok on dolce cciae decane 12 aI as CRs is Doe pura tent ce te ikaue. aie 17 TABLE OF AUTHORITIES CASES Balistreri v. Pacifica Police Department, 901 F.2d 696 (9th Cir. 1990). Cornelius v. Town of Highland Lake, 880 F.2d 348 (lith Cir. 1989), cert DeShaney Serv., v. Winnebago Soc (1989) . j “a ~~ a. -* Dwares 7 1993) City of New York, 985 F.2d 94 (2nd Cir. Freeman v0 Ferguson, 911 F.2d 423 (8th Cir. 1990). Gregory v. City of Rogers, Ark., 974 F.2d 1006 (8th Cir. 1992), cert. denied, 507 U.S. 913 (199) Johnson v. Dallas Independent School Dist., 28 F.3d 198 (5th Cir. 1994), denied, 514 US. 1017 CROOED. kw cw mcwbincnvaccsbaee a eee Ss cert L.W 974 F.2d 119 (9th Cir. denied 508 L S 951 (1993) a Grubbs, L.W Grubbs, 974 F.2d 119 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993), on remand, *2 F.3d 0064 (OG Cie. BOREOS . cock xe avlenkees eee es Mark v. Borough of Hatboro, 51 F.3d 1137 (3d Cir. 1995), cert. denied, 516 U.S. 858 (1995) Ss ae ete Pinder v. lohnson, 54 F.3d 1169 (4th Cir. 199), cert. denied, 516 U.S. 994 (1995) Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993), cert. dented, See US. Say Caer ccavscecsbamernese cs Soto v. Flores, 103 F.3d 1056 (1st Cir. 1997), cert. denied, (1997) .... ae denied, 494 U.S. 1066(1990) .... Page 11 passim ill TABLE OF AUTHORITIES —- Continued Page Uhlrig v. Harder, 64 F.3d 567 (10th Cir. 1995), cert. er, Teen ES, WO RO RD «ss aon o's Une ade wav see 11 United States v. Lanier, 520 U.S. 259 (1997)........... 15 Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), cert. ee Se ES OD. ss wc ks kk ccc sacuacess 10 STATUTES eS ae OOP Ga Dkk ewe haw bop ae wa 1, 4 a Ue Ys eS c vce kab w ee «ees Sea ieeaee 1, 4 ee a ds shiek ese n vee Ko ee vues de Os 1, 4 I Set ae eg ec a a's wale a owe Awan wie 6 SY EE SO WO ica canes vesscvectecke ee Peek pupeemne Court Ruse 10fa) ...... d.--- ccc eeccees 11 STATEMENT OF THE CASE This is a civil rights action brought pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, seeking monetary dam- ages for the alleged violation of Petitioners’ (collectively “DeMarias”)! Fourteenth Amendment rights. The alleged violation of rights stems from a fight which occurred between some of the DeMarias and their neighbors (col- lectively “Sorensons”)? on March 27, 1993. DeMarias sued Respondents (collectively “Washing- ton County”), asserting that despite Washington County’s prior knowledge of problems between DeMarias and Sorensons, Washington County did noth- ing to protect DeMarias. DeMarias assert that Washington County had a duty to protect them from Sorensons. Washington County moved for summary judgment on the basis that under DeShaney v. Winnebago Soc. Serv., 489 U.S. 189 (1989), it owed no duty to protect DeMarias from Sorensons. The District Court granted Washington County summary judgment. Relying upon DeShaney, the District Court held Washington County’s alleged acquies- cence in the dispute did not create the danger DeMarias faced. Therefore, Washington County owed no duty to ' Petitioners are Anthony M. DeMaria, Kathy L. DeMaria, Tony DeMaria, Jr., and John Joseph DeMaria, by and through Anthony M. DeMaria, Guardian Ad Litem. * The neighbors were Tom Sorenson and Kevin Sorenson. Sorensons are not parties to this litigation. * Respondents are Washington County; Washington County Board of Commissioners Don Stephens, Mildred Horton, Ronald Pound; Sheriff's Department of Washington County; Sheriff Michael Wadley; and undersheriff Jim Nelson. ho Protect DeMarias from Sorensons. Petition for Writ of Certiorari, Appendix B, PP- 13-17. A Ninth Circuit pane] affirmed. Id. Appendix A, A Petition for Rehearing was denied and no Ninth Circuit judge requested a vote on a Suggestion for rehearing en banc. Id., Appendix D. Peti- tioners seek a writ of certiorarj from the Ninth Circuit's decision. A, STATEMENT OF FACTS The March 27, 1993, fight resulted from an impromptu event between neighbors who apparently detested each other. Tony DeMaria, Jr., was in a vehicle Proceeding toward the DeMaria home in Weiser, Idaho. Tom Sorenson was driving a Vehicle in the Opposite direc- tion. When the two vehicles Passed each other, Tom Sore- Nson raised his fist at Tony DeMaria, Jr. Tony DeMaria, Jr, “flipped off” Tom Sorenson. Tom Sorenson turned his vehicle around and followed Tony DeMaria, Jr., to DeMarias’ house where the fight broke out. The fight eventually included aS Participants three DeMarias and Sorensons, Washington County law enforcement officers investj- gated the fight. Four days later, the County prosecutor charged Kevin Sorenson with a felony and charged Tom Sorenson with two misdemeanors. The criminal] charges against Kevin Sorenson resulted in a plea agreement Which reduced his charge to misdemeanor battery. He pled guilty. Tom Sorenson had a jury trial with the jury tinding him Suilty of disturbing the peace. CC ee While DeMarias’ Claim arises from the fight of March Y «2 1993, the StTavamen of their Complaint concerns events which Preceded the fight. DeMarias now4 charac- terize the critica] Pre-fight facts as follows: Their neigh- bors verbally harassed and threatened them. Petition for Writ of Certiorari, p. 8. Washington County took “no action” against the neighbors. [q. Instead, Washington County “fraternized” and “encouraged” Sorensons, Id. The sheriff Purportedly told Anthony DeMaria that the Sheriff's office Would not Protect him and did not want him in the community. Id. After the March 27, 1993, fight, DeMarias State the sheriff's department's investigation was biased.5 Id., at 10. Further, Washington County con- tinued to “celebrate and fraternize” with Sorensons. Id. retina, * DeMarias’ characterization of the facts has §TOWn, as has their imagination, as time has Passed. See, for example, the District Judge’s characterization of the new allegations in DeMarias’ Amended Complaint. Petition for Writ of Certiorarj, Appendix B, P- 11 and pp. 12-13 As further example, DeMarias’ counsel was asked at oral argument before the Ninth Circuit Panel to °UPPport assertions made in DeMarias’ briefing. Counsel was not able to do so. Many of the allegations made in the Petition before this Court are the Same as were made to the Ninth Circuit. DeMarias’ characterization of the facts Should be viewed skeptically. The District Court’s factual findings are more accurate. ld., Appendix B, pp. 6-8. In any event, even DeMarias’ MOst recent factual account in the Petition does not Warrant the iMposition of a duty to Protect under DeShaney. > If the investigation Was biased, why did it result in charges being brought against Sorensons? ....... B. PROCEEDINGS AND DISPOSITION IN LOWER COURTS. The course of proceedings is remarkable in that six different federal judges have considered DeMarias’ alle- gations and determined Washington County owed no duty to protect DeMarias from their neighbors. DeMarias’ Complaint was filed June 29, 1993. Washington County immediately moved to dismiss the Complaint on the basis that under the facts alleged it had no affirmative duty under the Fourteenth Amendment to protect DeMarias from their neighbors. A magistrate judge heard and decided Washington County’s Motion to Dismiss. The Magistrate Judge recommended that the Motion to Dismiss be granted as to the § 1983 claims; but the Magistrate allowed DeMarias ten days within which to amend their Complaint as to the § 1985 and § 1986 claims. Since DeMarias objected to the Magistrate’s Report and Recommendation, a United States District Judge reviewed the Report and Recommendation. He dismissed the Complaint and allowed DeMarias 20 days to file an amended complaint. The dismissal was granted on the basis that Washington County did not owe DeMarias a duty under the Fourteenth Amendment to protect them from their neighbors. The District Court did permit DeMarias to file an amended complaint because he could envision circumstances where a cause of action under § 1983 and § 1985 could be alleged. DeMarias filed an Amended Complaint. The gist of the new allegations in the Amended Complaint was that Washington County “affirmatively placed” DeMarias in a position of danger by communicating to local law enforcement and DeMarias’ neighbors that DeMarias’ complaints would not be investigated and DeMarias would not be protected from their neighbors. Washington County filed a Motion for Summary Judgment. The Motion again raised the issue of Washington County’s duty to protect DeMarias from their neighbors. DeMarias waited until two days before the hearing to file an oppo- sing memorandum and affidavits. The hearing was rescheduled. One-half hour before the second hearing, DeMarias filed yet another affidavit. Washington County moved to strike blatant hearsay from DeMarias’ affidavits and moved to strike one affidavit because it was untimely. The United States District Judge, the third federal judge to consider DeMarias’ allegations, granted the Motion for Summary Judgment and granted the Motion to Strike. The District Judge concluded that under DeShaney there was no duty owed by Washington County to protect DeMarias from Sorensons. Moreover, the Dis- trict Court held that to the extent DeMarias’ Amended Complaint could be construed to include an Equal Protec- tion Claim, the claim was waived and/or there was no competent evidence to support it. Finally, in granting the Motion to Strike, the District Judge struck the hearsay statements and the untimely filed affidavit. DeMarias filed two Motions for Reconsideration. One Motion addressed the propriety of granting summary judgment. The other Motion addressed the propriety of granting the Motion to Strike. For relief, DeMarias, in part, sought to continue the hearing on the Motion for Summary Judgment to develop new evidence. The Court denied the Motions to Reconsider. DeMarias filed a Notice of Appeal. The Ninth Circuit pane: affirmed summary judgment on the basis that DeMarias could not demonstrate facts warranting imposi- tion of a duty to protect under the Fourteenth Amend- ment. Petition for Writ of Certiorari, Appendix A, p. 3. The panel held neither DeMarias nor Sorensons were within the control of Washington County. Further, there was no evidence that Washington County told Sorensons that DeMarias would go unprotected. Id. Moreover, the Ninth Circuit panel held the District Court did not abuse its discretion in striking rank hearsay from DeMarias’ affidavits, in striking the untimely filed affidavit, in denying an untimely Motion under Federal Rule of Civil Procedure 56(f) for additicnal time, and in denying the Motions to Reconsider. Id., at pp. 3-5. DeMarias’ Motion for Reconsideration With Suggestion for Rehearing En Banc was denied. No Ninth Circuit Judge requested a hearing on the suggestion for rehearing en banc. Id., Appendix D, p. 31. Thus, six federal judges have now considered DeMarias’ claims and have unanimously held that DeMarias’ facts are not sufficient to rise to the level of creating a duty to protect under DeShaney. * SUMMARY OF ARGUMENT The Petition for Writ of Certiorari, which addresses the Fourteenth Amendment Due Process Claim,® should be denied because: 1. The issue presented is not sufficiently important to warrant this Court’s review. In DeShaney, this Court held that a governmental actor, except under limited circumstances, owes no duty under the Due Process Clause to protect one citizen from the actions of another. Since DeShaney, numerous petitions for writ of certiorari have been sought from cases addressing the parameters of this Court’s holding. All of the petitions have been denied. There is nothing about DeMarias’ Petition that warrants different treatment. 2. Contrary to Petitioners’ arguments, there is no conflict between the Second, Eighth, and Ninth Circuits on the particular issue raised. The legal rule applied in 6 The Petition also raises “procedural and evidentiary” questions which it asks this Court to consider if the Petition is granted. Petition for Writ of Certiorari, p. 19. Since the pending question is whether the Court will exercise its discretion to grant certiorari, Washington County is addressing only the Due Process Claim in this Brief. Had DeMarias independently sought certification as to the procedural and evidentiary questions, those questions would not present important matters. Rather, those questions assert error amounting to erroneous factual findings or abuse of judicial discretion. Thus, the questions do not justify this Court’s review. Supreme Court Rule 10. In addition, for purposes of this Brief Washington County adopts the reasoning of the District Court and the Court of Appeals as to those issues. Petition for Writ of Certiorari, Appendices B and A, respectively. each Circuit is the same. What DeMarias actually chal- lenge is the application of their facts to the correctly stated law. The Ninth Circuit correctly applied DeShaney to hold that Washington County owed no duty to protect DeMarias under the facts of this case. ¢ ARGUMENT I. THE PETITION FOR WRIT OF CERTIORARI SHOULD BE DENIED BECAUSE THE ISSUE PRESENTED IS NOT SUFFICIENTLY IMPORTANT TO WARRANT THIS COURT’S REVIEW. Following the seminal DeShaney decision, this Court has been asked to review numerous Circuit Court rulings applying DeShaney. Certiorari has been denied in each instance. There is nothing about this Petition which war- rants different treatment. In DeShaney, this Court held that the Due Process Clause does not impose upon government the obligation to protect its citizens from each other. [N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against inva- sion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. 489 U.S. at 195. The holding was applied to a factual scenario this Court described as tragic. Id. at 191. For over two years governmental employees were aware that Joshua DeShaney was being abused by his father. Id. at 192-193. When he was four years old, his father beat him so severely that he fell into a life-threatening coma. Id. He and his mother sued the governmental employees involved, alleging that Joshua’s due process rights were violated by the State actors’ failure “ . . . to intervene to protect him against a risk of violence at his father’s hands of which they knew or should have known.” Id. at 193. This Court rejected the claim. “ . . . [W]e conclude that a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” Id. at 197. This Court went on to address Joshua’s argument that a “special relationship” was created when the State, knowing of Joshua’s circumstances, attempted to protect him. So, the argument went, when the State failed to protect him, a substantive Due Process Claim arose. Id. at 197. This Court rejected the argument. It limited the “special relationship” argument to “the limited circum- stances” when a”... state takes a person into its custody and holds him there against his will... .” Id. at 199-200. The Court reasoned: The affirmative duty to protect arises not from the state’s knowledge of the individual’s predica- ment or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. Id. at 200 (emphasis added). The Court rejected Joshua’s “special relationship” argument on the basis that he was not in the custody of 10 the State at the time of his injuries. The State had not limited his freedom to act on his own behalf. In that context — that Joshua was not in the State’s custody — the Court made a one-sentence statement which has become the genesis in the Courts of Appeal for the so-called “danger creation” exception to DeShaney. The Court said: While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. Id. at 201. As noted, since DeShaney the Courts of Appeal have interpreted the above-quoted language as recognizing cir- cumstances when a governmental entity may have a duty to protect one citizen from another, i.e., when the govern- mental actor created the danger. For example, the Ninth Circuit has identified two elements for application of the danger creation exception: (1) the government entity acted with deliberate indifference, and (2) the govern- ment entity’s affirmative conduct placed the plaintiff in a position of danger. Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), cert. denied, 498 U.S. 938 (1990); L.W. v. Grubbs, 974 F2d 119 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993), on remand, 92 F.3d 894 (9th Cir. 1996). The inquiry — whether the government actor’s affir- mative conduct is sufficient to create a danger and a corresponding duty to protect — is by definition a factual one. The focus is upon the governmental actor’s affirma- tive conduct. What did the governmental actor do? If he 11] acted, is the affirmative conduct sufficient to create a danger? Numerous cases have addressed these questions. Certiorari has been sought several times and in each instance, this Court has denied the petition.? DeMarias’ Petition does not warrant this Court’s review any more than any prior petition addressing these questions. The issue is not an important matter as required by Supreme Court Rule 10(a). ? The following are recent representative cases in which this Court denied certiorari where the Court of Appeals addressed the duty to protect one citizen from another under the Due Process Clause: Soto v. Flores, 103 F.3d 1056 (1st Cir. 1997), cert. denied, __ U.S. ___ (1997); Mark v. Borough of Hatboro, 51 F.3d 1137 (3rd Cir. 1995), cert. denied, 516 U.S. 858 (1995); Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995), cert. denied, 516 U.S. 994 (1995); Johnson v. Dallas Independent School Dist., 38 F.3d 198 (Sth Cir. 1994), cert. denied, 514 U.S. 1017 (1995); Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993), cert. denied, 510 U.S. 947 (1993); Gregory v. City of Rogers, Ark., 974 F.2d 1006 (8th Cir. 1992), cert. denied, 507 U.S. 913 (1993); L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993); UhIrig v. Harder, 64 F.3d 567 (10th Cir. 1995), cert. denied, 516 U.S. 1118 (1996); and Cornelius v. Town of Highland Lake, 880 F.2d 348 (11th Cir. 1989), cert. denied, 494 U.S. 1066 (1990). 12 II. THE PETITION FOR WRIT OF CERTIORARI SHOULD BE DENIED BECAUSE THERE IS NO LEGAL CON- FLICT BETWEEN THE SECOND, EIGHTH AND NINTH CIRCUITS ON THE PARTICULAR ISSUE RAISED. THE PETITION ACTUALLY CHALLENGES THE NINTH CIRCUIT’S CORRECT APPLICATION OF DeSHANEY. The Petition states that there is an “apparent conflict” in the Second, Eighth and Ninth Circuits in the “construc- tion and application” of the phrase “ratify, condone or in any way instigate” as that term has been applied to the danger creation exception. Petition for Writ of Certiorari, p. 20. A careful reading of the Petition reveals that there is no legal conflict. Actually, DeMarias want this Court to review the factual findings and apply those findings dif- ferently than did the Ninth Circuit. At best, DeMarias argue a misapplication of a correctly stated rule of law. DeMarias do not identify legally inconsistent posi- tions in the three Circuits. In fact, while they refer to an “apparent conflict” (Petition for Writ of Certiorari, p. 18), Petitioners make repeated reference to the commonality in legal approaches taken by the three Circuits. For instance, DeMarias criticize the District Court for failing to“... apply language from post-DeShaney decisions in the Ninth and other Circuits which define and elaborate the ‘danger creation’ exception. ... ” Petition for Writ of Certiorari, at p. 21. The Petition continues, “These cases suggest that plaintiffs may preserve due process claims .. if they plead... that defendants . . . did ‘anything’ to ‘ratify, condone or in any way instigate’ the abuses of the private actor.” Id. (emphasis added). DeMarias then cite 3 Pi rere 13 as authority cases from the Second Circuit, Dwares v. City of New York, 985 F.2d 94 (2nd Cir. 1993), the Eighth Cir- cuit, Freeman v. Ferguson, 911 F.2d 423 (8th Cir. 1990), and the Ninth Circuit, Balistreri v. Pacifica Police Department, 901 F.2d 696 (9th Cir. 1990).8 Thus, DeMarias acknowl- edge that the law in the three Circuits is consistent. What is clear from reading the Petition is that DeMarias are dissatisfied with the “application and con- struction” of consistent law in the Circuits. They do not challenge the rule of law which they contend has devel- oped in the three Circuits. At best, they are arguing a misapplication of a properly stated rule.? Such an argu- ment does not warrant this Court’s consideration. Supreme Court Rule 10. Under the guise of a conflict in the law in three Circuits, DeMarias actually are asking this Court to review a properly and fairly decided matter. DeMarias’ evidence clearly brought their case within DeShaney’s holding that governmental actors owe no duty to protect one citizen from another. 8 DeMarias make further reference to the consistency of the cases from the three Circuits: “ . . . Balistreri and its progeny in the other Circuits ... ,” Id. at 22; “Freeman and Dwares each develop and apply the language propounded by the Ninth Circuit in Balistreri...,” Id. at 24; and “” ‘ratify’ or ‘condone’ which Freeman and Dwares borrowed from Balistreri.” Id. at 25-26. ° The Dwares and Freeman cases, upon which DeMarias so heavily rely, are not legally inconsistent with Ninth Circuit precedent. But, the cases are factually distinguishable from DeMarias’ case. See, the District Court’s discussion of those cases. Petition for Writ of Certiorari, Appendix B, pp. 16-17. 14 There is no dispute that the fizht that erupted on March 27, 1993, was an impromptu event between neigh- bors who had a history of not getting along with each other. Moreover, there is no dispute that Washington County was not present during the fight. DeMarias’ evi- dence focuses upon Washington County’s failure to inter- vene to prevent the neighbor’s dispute.!° Washington County’s purported failure to intervene and stop the neighbor’s from harassing each other is virtually identical to the conduct of the Department of Social Services in DeShaney. In DeShaney, it was alleged that the State had knowledge of Joshua’s abuse for two years. During that two years, the State had acted to protect him. It had investigated Joshua’s abuse on several occasions, removed Joshua from his father’s home, returned him to his father’s care, imposed counseling requirements on Joshua’s father, and imposed monthly social worker contact at Joshua’s home. Despite the State’s contact with Joshua, and its failure to intercede on his behalf, the Court held there was no duty to protect him from his father. That was so because the State only has a duty to protect when it imposes a limitation on the 10 DeMarias have over time made scandalized accusations to enlarge Washington County’s role in the fight. See, Petition for Writ of Certiorari, Appendix B, pp. 12-13. The allegations have never been supported by competent evidence. Furthermore, DeMarias offered rank hearsay to support their Equal Protection Claim. The hearsay was appropriately stricken. Id. at pp. 18-20. Thus, despite DeMarias’ attempts to expand Washington County’s role, they have never offered competent evidence to support those allegations. 15 ability of the individual to act on his own behalf. DeShaney, supra, at 200."! The District Court granted summary judgment to Washington County because Washington County did nothing to limit DeMarias’ ability to act on their own behalf. As stated by the District Judge: Assuming that the DeMarias’ allegations are true, they do not rise to the level required by the Due Process Clause. Nothing in the record indi- cates that the Defendants affirmatively created any dangerous situation. The danger was affir- matively created by Sorensons. The DeMarias were never dependent and he!pless. Assuming that Sheriff Wadley and Deputy Nelson ignored the DeMarias’ pleas for help, their passivity is not the “affirmative creation of a dangerous sit- uation” required by the case law. The DeMarias claim that Sheriff Wadley and Deputy Nelson affirmatively created a danger by letting the Sorensons get away with outra- geous physical and verbal abuse, thereby essen- tially encouraging that abuse. But this argument flies in the face of DeShaney. The county defen- dant let the abusive father get away with multi- ple beatings of his child. Certainly, the abusive father could be said to have been emboldened by the county’s “acquiescence-by-silence.” But the Supreme Court dismissed the suit anyway, holding that the Due Process Clause was not violated when the “state functionaries . . . stood 11 This Court recently confirmed that DeShaney limits the duty to protect to circumstances where the victim is in the State’s custody. United States v. Lanier, 520 U.'5. 259 (1997). 16 by and did nothing when suspicious circum- stances dictated a more active role for them.” Id. at 203. Petition for Writ of Certiorari, Appendix B, pp. 15-16. In affirming the District Court, the Ninth Circuit panel correctly held that Washington County did not exercise control over DeMarias or Sorensons. There was, therefore, no duty to protect. The Ninth Circuit panel applied the appropriate law to the facts found by the District Court. The decision was proper and fair based upon DeMarias’ evidence. Finally, it should be noted that DeMarias’ argument is inconsistent with DeShaney. The gist of DeMarias’ argu- ment is that if a governmental actor does “anything” to “ratify, condone or in any way instigate” the actions of one citizen against another, the governmental actor is liable. Petition for Writ of Certiorari, pp. 20-26. DeMarias’ position cannot be reconciled with DeShaney. As noted above, the governmental actors in DeShaney were actively involved in investigating allega- tions of abuse by Joshua’s father, including, removing Joshua from his father’s care, imposing counseling requirements on Joshua’s father, and imposing monthly contact by a social worker. DeMarias’ argument would impose liability on the State actors in DeShaney since they did “something” to “instigate” Joshua’s abuses. Clearly, DeMarias’ argument flies in the face of DeShaney. + a a ca a 17 CONCLUSION The Petition for Writ of Certiorari should be denied since it does not present an important matter; it does not present a conflict of laws in the Circuits; and the Ninth Circuit Court of Appeals properly and fairly decided the appeal. Respectfully submitted this 16th day of June, 1998. Respectfully submitted, James J. Davis Attorney at Law 406 W. Franklin Street P. O. Box 1517 Boise, Idaho 83701-1517 Telephone: (208) 336-3244 Counsel of Record for Respondents --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1599%3A2. Public record. Not legal advice.