The forgotten foundation of state-created danger claims

State-created danger is a theory of recovery for civil rights violations under 42 U.S.C. Sec 1983.1 The theory of recovery is used against state actors, such as police, when the actor indirectly harms people by creating a danger that ultimately injures them. For example, an officer arrests a driver at night and leaves the driver's children behind in the car. When the abandoned children are subsequently injured by others, they have been deprived of the substantive due process right to "bodily integrity."2 However, because a private actor, such as a criminal, usually causes the ultimate injury in state-created danger claims, the courts have struggled with imposing liability on the state actor who played only an indirect role. Not only have the federal circuits divided on whether to recognize state-created danger claims, but judges within one circuit have also been sharply divided.3 The United States Supreme Court has never directly approved of the state-- created danger theory of recovery.