Informant can't sue the police for drug bust gone awry

The government does not generally have a duty to protect you from dangerous people or situations. This was the holding in the Supreme Court case, DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), a ruling that still triggers debate among scholars and critics. But DeShaney remains the law, and as the Second Circuit reminds us this week, it's difficult to win a lawsuit against the government even when law enforcement officers place you in harm's way.

The case is Matican v. City of New York, decided on April 23. After being busted for drugs, Matican agreed to help the police arrest a drug dealer. One of the officers told Matican, "Don't worry, Robert, we will look after you. We will protect you." With Matican's help, the police arrested the dealer in a sting operation, but when the dealer was released on bail, no one told Matican how violent and dangerous the dealer really was. Had Matican known this, he would have moved to California. Instead, the dealer tracked down Matican and slashed his face with a razor. Matican sued the police for failure to protect him.

To the uninitiated, this case is an easy one. The police placed Matican in danger and did not warn him that the dealer was violent and might go after him. Matican would not have been injured had the police told him about the dealer's violent propensities. But the legal analysis is more complicated. In DeShaney, the Supreme Court ruled that "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." There are two exceptions to this rule: (1) where the government has a "special relationship" with the victim or (2) the government "in some way assisted in creating or increasing the danger to the victim." However, even if the plaintiff satisfies one of these conditions, he can't win the case unless the government's failure to protect him was "shock[ing] to the contemporary conscience."

It's very difficult to win these cases under that standard. The Court of Appeals (Feinberg, Winter and Straub) notes that "this [conscience shocking] requirement screens out all but the most significant constitutional violations."As the courts have defined that phrase, Matican had no "special relationship" with the police as he was not in custody or forced into a situation against his will. On the other hand, the government did create and/or increase the danger to Matican because they conducted the sting in a manner that would allow the dealer to know that Matican was the informant.

That's not enough for Matican to win the case, though. Even though the government placed him in danger, it was not "conscience-shocking" as the courts have defined that phrase, because the police have discretion to plan the sting and they need leeway in determining its execution. That strategy may place Matican at great risk, but the police also have to worry about their own safety. If the police decide they need to use physical force against the dealer, that might place Matican in danger. But that force might be necessary to protect the police. That judgment call gives the police the benefit of the doubt, and the Court of Appeals expressly declines to tell the police how to carry out a sting like this. So, while the police may execute the sting in a manner that increases the danger to Matican, that is not "conscience-shocking."