Wednesday, December 26, 2012

Tenth Circuit BIC v. Gillen 11-3219

Decision here.

   The facts of this case don't involve much police action, but it's getting summarized here anyway.

   Gillen was a social worker who received numerous reports from BIC's grandparents, from a doctor, and from law enforcement that alleged child abuse against BIC and her sister.  She didn't do anything about these reports, to the point of refusing to accept photographs of injuries, claiming to have done follow up investigation which may or may not have actually been done, and failing to investigate the reports she received either from law enforcement or civilian witnesses.  There are allegations that this is because she had a grudge against this specific family (and those allegations were apparently borne out by statements from law enforcement and from an internal investigation by Gillen's supervisor).

   Eventually, one of the kids died.  Her stepfather's girlfriend (I think I got that right, it gets kinda tangled) was convicted of the murder.  BIC's grandparents filed a §1983 claim, alleging a due process violation. Usually, due process only protects people from actions taken by the government and not from actions by third parties (such as the murder of a child by a private individual). There are two exceptions: 1- Where the the state has assumed a special relationship with and control over an individual. 2- Where state officials created the very danger that caused the harm, they may be liable for the actions of third parties.

   In this case, the allegation is that Gillen created the danger by her refusal to act. The district court had given Gillen qualified immunity on this, but the plaintiffs appealed that. The Tenth held that this wasn't so much a failure to act as a conscience-shocking refusal to act, and that Gillen is not entitled to qualified immunity. The case was sent back to the lower court to see if the plaintiffs can prove the other elements of the danger-creation exception.

   I'm throwing this one on the blog because it shows that there are some circumstances (however rare) where just failing to to our job actually becomes a Constitutional violation. Hopefully, the police would know better than to engage in the sort of wanton and egregious intentional neglect that Gillen is accused of. Then again, hopefully social workers would also know better.

2 comments:

  1. On 3-19-13, the court retracted their opinion in this case and issued a revised opinion. I read the new opinion, and as far as I can tell it says the same thing that the old one did.

    The new decision does mention that there are additional elements to the danger-creation exception that may or may not have been met, and that it's up to the lower court to address these (I don't remember whether or not the old decision focused on that point). It also talks about how the social worker was granted summary judgment on another issue within the lawsuit (which wasn't part of my summary here, because it doesn't really apply to law enforcement).

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  2. On 7-31-14, this case made it in front of the Tenth Circuit again. I'm sick of reading about the same case... qualified immunity was granted this time, because Gillen's failure to act did not violate any clearly established rights.

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