By Elie Mystal / The Nation
The massacre at Robb Elementary School in Uvalde, Tex., has exposed one of the Republican Party’s favorite pro-gun talking points—the “good guy with a gun” refrain—as a fraudulent gun lobby ad campaign that will not protect our children. There were many police officers on the scene in Uvalde, yet these alleged good guys with guns did nothing to stop the mass murder of children. Instead, the officers used their armaments and training to prevent parents from saving their own kids. I guess all the military-style equipment Republicans constantly funnel to the police really is just meant to shoot gas canisters at unarmed protesters outside a Target, not to subdue a lone gunman systematically executing children and teachers.
Republicans are reluctant to blame the overfunded, heavily armed police for their cowardice in the face of actual danger. Instead, they’ve blamed just about everything else (except guns, of course, never guns). Cancún Senator Ted Cruz traveled to Texas to blame Robb Elementary for having too many doors, which should give people a sense of how unserious the Republican Party is when it comes to protecting children.
Of course, there are others, including some in the Uvalde community, who want answers and accountability. The police response (or lack thereof) to the shooting is already being investigated by the Texas state police, and the Department of Justice is going to review the incident as well.
But the sad reality is that police chief Pete Arredondo (currently in hiding) and his officers will likely escape any legal accountability or even punishment for their actions. That’s because in the United States, the police have no duty to protect children, even when they are the only ones who can. That sorry fact isn’t the fault of Congress, or even the state or local governments, which are primarily responsible for policing. The blame lies, once again, with conservative justices on the Supreme Court.
The reason for that goes back to a case called DeShaney v. Winnebago County Department of Social Services. The case, decided in 1989, didn’t deal with the police specifically but rather with child protective services, which the court ruled had no affirmative duty to protect children from harm, and thus no legal culpability for the failure to do so.
At the center of the case was a father, Randy DeShaney, who was abusing his 4-year-old son. A court in Wyoming granted DeShaney custody of the boy in a divorce settlement, and the two of them moved to Wisconsin. The Department of Social Services (DSS) in Winnebago, Wis., was put on notice of the abuse by DeShaney’s second wife and step-mother, after she and DeShaney also divorced. A doctor further told the department of suspected abuse after the child was brought to a local hospital. DSS convened a “team” and interviewed the father, but decided not to seek removal of the child from his custody. There were additional hospitalizations, known by the DSS caseworker over a period of months, but still the child was left in DeShaney’s custody. Eventually, DeShaney beat the child so severely the child suffered irreparable brain damage. The father was tried and convicted of child abuse, and the mother sued the state on the child’s behalf for failing to protect him.
Writing for a 6-3 conservative majority, William Rehnquist ruled that the state’s failure to protect a child from “private violence” was not a violation of the Due Process clause of the Constitution, which says no one shall be “deprived of life, liberty, or property without due process of law.” According to Rehnquist, the protections of “life, liberty, and property” do not mean that the state has to actively protect these things, just that it can’t take them away without due process of law.
I actually agree with this first part of Rehnquist’s ruling. As a purely practical matter, it is unworkable to hold the government liable every time it “fails to protect” the loss of life, liberty, or property caused by private action. The state cannot prevent all crime; it can merely be expected to find and punish criminals.
It’s the rest of the opinion where Rehnquist gets it all wrong. Rehnquist argues that the state had no “special relationship” with the child, and thus had no affirmative duty to protect him. The state, Rehnquist acknowledged, would have a duty to protect the child if he were in the state’s custody, say at a child detention facility. The state would have a duty to protect if it caused the harm. But here, even though the state knew about the violence, even though a different state put that child in that position to begin with, even though a government agency promised to protect the child, Rehnquist ruled that Wisconsin had no constitutional duty to the child.
That is some cursed logic. The state does, or should, have a duty to prevent crime when it is aware that crime is being committed and it is the only entity that can step in and stop it. In the DeShaney case, DSS knew the child was being abused and put itself in the only position to stop it. Remember, DeShaney was granted custody by the state in the first place.
DeShaney was decided in 1989. In 1999, 13 people were killed by two gunmen at Columbine High School in Colorado. In the aftermath of that massacre, questions were also asked about what government agents—in this case, the police—did to prevent the shooting from happening. Lawsuits were brought against police officers and some school officials. Most of those lawsuits were dismissed, and in the dismissal federal judge Lewis Babcock repeatedly cited DeShaney as protecting the cops and the school from liability for their inactions.
If the Supreme Court didn’t like how its opinions were being used to protect cops from accountability after school shootings, it had a chance to correct itself in the 2005 case called Castle Rock v. Gonzales. That case addressed police inaction directly. There, Jessica Gonzales had a restraining order preventing her estranged husband from seeing their three children except in the case of prearranged visits. But Gonzales’s husband abducted the children. Gonzales asked police to find her husband and bring her children back, as her husband was in violation of a court order. But police in Castle Rock, Colo., told her to wait until the evening to see if he brought the children back. He did not. Instead, that night, he murdered all three children, then went to a police station and opened fire. He was shot and killed by police.
Gonzales sued, arguing that the police violated her constitutional rights by failing to protect her due process interests: specifically her “property” interest in having the restraining order she obtained against her husband enforced. The US Court of Appeals for the Tenth Circuit agreed, but the Supreme Court shut her down. Writing for a 7-2 majority (John Paul Stevens and Ruth Bader Ginsburg were the dissenting votes), Antonin Scalia ruled that the restraining order conferred no property interest the police were bound to protect, and that Colorado law did not entitle holders of restraining orders to any “specific mandatory action” by the police. Essentially, Scalia found that the police had no specific duty to find and protect the children.
Once again, we see that the Supreme Court is unwilling to find any constitutional violation when confronted with police inaction or incompetence. (I say “once again,” because we can’t forget the awful specter of qualified immunity, which protects cops from civil lawsuits that arise out of their constitutional violations while on the job). Thanks to the Supreme Court, the police have no affirmative duty to protect children, even when they know that children are in danger or when they are the only people available who can save them.
I can’t imagine being a parent of a murdered Uvalde child, I do not know what I would do. I think there should be legal recourse for them against the police. In the Uvalde situation, the police were more than passive, I’d argue. They actively prevented parents from going into the school and trying to save their kids. I would argue that the police use of force against the parents created a “special relationship” with the victims, and created an affirmative duty for the police to save these kids, since they were preventing parents from doing that themselves. The police on the scene essentially took custody of the school: That should create a constitutional responsibility to protect the lives of those inside.
But conservative justices have shown, time and again, that they will not hold the police accountable. There are cases all over the place where judges apply the Supreme Court’s rulings in DeShaney and Castle Rock and fail to hold the police to a duty to protect people who are suffering from violence in real time. This is a fairly common feature of the conservative interpretation of constitutional law: The cops are authorized to shoot anybody if they are afraid, but they’re not required to save anybody, if they are too afraid to do so.
We don’t have to live like this. We don’t have to have unfettered access to guns. We don’t have to live with daily mass shootings. We don’t have to have cops who shoot unarmed teenagers. We don’t have to have cops who refuse to protect children. These outcomes are policy choices. Increasingly, they are choices imposed upon us by unelected, unaccountable justices. The Supreme Court will not protect our children, and it won’t require anybody else to either.