This Note reviews the legal landscape of Fourteenth Amendment substantive due process theory promulgated by the Supreme Court and discusses the importance of the landmark decision in DeShaney v. Winnebago County Department of Social Services in that context. Next, this Note discusses the treatment of DeShaney by the circuit courts, focusing on two exceptions to DeShaney’s analysis that have been carved out by many courts. This Note then reviews the decision in McMullen, and argues that the court of appeals improperly applied DeShaney to the facts in McMullen and that, in any event, DeShaney is an unfortunate extension of an unduly restrictive approach to Fourteenth Amendment claims. Finally, this Note suggests that the current stance of the federal courts on state actors’ constitutional liability to children endangered by their actions warrants a voluntary state review of tort legislation so that children like S.S. are not left without options for redressing harm inflicted by their self-described protectors.
Bryan R. Berry,
Crime of Dispassion: Eighth Circuit (Mis)Applies DeShaney in Failing to Hold State Employees Accountable to the Children They Protect,
66 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol66/iss4/5