Does the Government Have a Duty to Protect People from One Another When the Government Creates the Danger?

02.08.22

Although the government usually has no duty to protect people from one another, on January 31, 2022, in Mears v. Connolly, No. 21-1148, the Third Circuit ruled that the government may be liable when the government itself creates the danger. On appeal from dismissal, the Appellant, June-Lori Mears, claimed the government endangered her life when a state psychiatrist encouraged Ms. Mears to visit her mentally ill son, and the state nurse left Ms. Mears alone with her son, thereby rendering her venerable to assault.  

The Mears case involved the admission of Ms. Mear’s son, Brenden Mears, to a state-run psychiatric hospital in New Jersey secondary to severe bipolar disorder. During his admission, Brenden grew more psychotic; he stalked the halls, made aggressive comments to staff, and attacked other patients. Just days after Brenden attacked a patient, Ms. Mears was encouraged to come to the psychiatric hospital and was assured by the state psychiatrist, Dr. Joseph Young, that it was safe to visit. Although the facility maintained policies requiring staff supervision of all patient visits, the head nurse, Shira Oglesby, left the room during the visit between Brendan and his mother. Brendan “intently” watched Nurse Oglesby leave and, once she was gone, he assaulted Ms. Mears. 

The District Court dismissed the 42 U.S.C. §1983 claims based on sovereign immunity, and because it reasoned state officials have no affirmative duty to protect people from private violence. On appeal, the Third Circuit agreed the government generally had no legal duty to keep people safe; however, it found the government had an obligation to protect people from dangers the government itself created. Inasmuch as §1983 claims required a showing of personal wrongdoing, the allegations against the psychiatrist and nurse were analyzed separately.  

To set forth a state-created danger claim pursuant to the Fourteenth Amendment’s Due Process Clause, Ms. Mears was required to plausibly plead that: 

  1. She suffered a foreseeable and fairly direct harm; 
  2. The state acted with a degree of culpability that shocks the conscious; 
  3. She was a foreseeable victim; and 
  4. The state affirmatively used its authority to create a danger or make her more vulnerable to danger than had it not acted at all. 

Inasmuch as the District Court addressed only the first and fourth elements when granting dismissal, the Third Circuit focused its analysis on the same.  

With respect to the state psychiatrist, the Third Circuit held that Dr. Young’s encouragement to visit was not enough of an affirmative act to satisfy the fourth element of a state-created danger. 

The Court relied upon precedent that assurances and failure to warn are not affirmative acts. Inasmuch as Dr. Young did not rob Ms. Mears of her power to choose whether to visit her son, the Third Circuit concluded that the District Court did not err in dismissing Dr. Young.

The Third Circuit then turned to Nurse Oglesby. In addressing whether the harm Ms. Mears suffered was “foreseeable and fairly direct,” the court noted that Nurse Oglesby was the head of Brenden’s nursing team and, therefore, was aware that Brenden’s mental health had deteriorated significantly, that he had become progressively more psychotic, and that three days earlier he was “acting bizarrely” and attacked another patient. The court found these facts would have placed Nurse Oglesby on notice of the serious threat Brenden posed to his mother and that by leaving the room during the visit, she facilitated the assault. Unlike the District Court, the Third Circuit was not persuaded by the government’s argument that the assault was unforeseeable because Brenden had not attacked Ms. Mears prior to this occasion. Instead, the Third Circuit found that “common sense” dictated that it was “inherently risky” to leave a visitor alone in a room with a violent psychiatric patient. As Ms. Mears’ injury was direct and foreseeable, the court concluded Ms. Mears plausibly pled the first element necessary to establish a Fourteenth Amendment claim for state-created danger.

The court then turned its attention to the fourth element: whether Nurse Oglesby affirmatively used her authority to create a danger or make Ms. Mears more vulnerable to danger than had she not acted at all. The government argued, and the District Court agreed, the complaint only argued inaction on the part of Nurse Oglesby and her conduct had not restricted Ms. Mears’ freedom to act on her own behalf. The Third Circuit disagreed. It found that Nurse Oglesby affirmatory used her authority to assume care, and then withdraw it when she terminated supervision of the visit, thereby leaving Ms. Mears alone in a more dangerous position. Once Nurse Oglesby left the room, Ms. Mears was deprived of her personal liberty. At that point in time, she was unable to leave the room due to the facility’s security protocols and could not take any precautions to protect herself from the attack. 

Inasmuch as Ms. Mears pled facts sufficient to overcome the first and fourth elements of a state-created danger, the Third Circuit reversed the decision and remanded to allow the District Court to finish analyzing the other elements of Ms. Mears’ state-created danger claim against Nurse Oglesby.  

Comment: Although this decision creates a duty requiring the government to protect people from the actions of a private individual, the court cautioned that this holding is a narrow one. Any such duty is imposed only where the government itself creates the danger. Moreover, the court warned that the result would likely be very different if Ms. Mears had agreed to an unsupervised visit.  

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