Denise Fisher v. Jodi M. Moore, et al.

The Due Process Clause of the Fourteenth Amendment commands that no State shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. This Court held in DeShaney v. Winnebago County Department of Social Services, that state inaction—in that case passively allowing a private party to harm another person—does not violate the Due Process Clause. 489 U.S. 189, 197 (1989). But the Court distinguished state inaction from state action where a state actor knowingly places a person in a situation that poses an unjustifiably high risk that a private party will harm that person. Id. at 201. That latter doctrine has come to be known as the “state-created danger” doctrine. By November 2019, when the events giving rise to this case took place, every regional circuit court of appeals but one had recognized the doctrine—uniformly holding that the Due Process Clause forbids state officials from knowingly placing a specific person at an unjustifiably high risk of serious harm. One holdout remains. In case after case for decades, and again in the decision below, the Fifth Circuit has declined to treat the doctrine as clearly-established and has declined to establish it. The question presented is: Whether the Court should hold that it was clearly established by November 2019 that the Due Process Clause prohibits state officials from knowingly placing a specific person at an unjustifiably high risk of serious harm, or should at least clearly establish that doing so violates due process going forward. (i)