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Abstract

“Failure-to-protect” cases, situations in which crime victims do not receive reasonably relied-upon police protection, receive troubling treatment under the law. This problem originated with the Supreme Court case DeShaney v. Winnebago County Department of Social Services, which held that litigants cannot bring a substantive due process claim for failure-to-protect cases. In doing so, the Court espoused a distinction between state action and inaction that relied upon unsound assumptions about state obligations and paltry factual analysis. DeShaney is troublesome because it provides only two situations in which failure-to- protect cases can be successful: physical, involuntary police custody and the state-created-danger doctrine. These exceptions are too narrow; they exclude the frequent situations in which police officers fail to carry out their duties when they are a severely injured victim’s only possible source of protection.

This Comment proposes two methods for providing more protection to victims who are faced with imminent violence and thus rely on police presence. One approach is to expand the custody exception past considerations of whether a victim is in physical custody and to account for the facts of the victim’s situation and reasonable police knowledge of those facts. A more drastic approach would be overturning DeShaney and replacing it with a dereliction-of-duty standard that considers steps the police took in handling a victim’s case and the effects of their inaction. The legal realm will benefit from standards that eschew the DeShaney Court’s misguided attempts at categorizing police conduct as action or inaction and clarify police obligations through fact-specific analysis.

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