Conscience-Shocking Conduct Requirement for State-Created Dangers Liability Under the Fourteenth Amendment
1. Introduction
The Court of Appeals for the Sixth Circuit’s decision in Jeffrey Franz et al. v. Oxford Community School District et al. addresses whether school officials may be held liable under the Due Process Clause for harms inflicted by a private actor—namely, the Oxford High School shooter. In November 2021, a 15-year-old student brought a semiautomatic handgun into the school and fatally shot four students and injured others. Victims filed suit against a school counselor (Shawn Hopkins) and the dean of students (Nicholas Ejak), alleging that their actions—or failures to act—constituted a “state-created danger” in violation of the Fourteenth Amendment. The key legal issue was whether those defendants’ steps (including threatening to call Child Protective Services if the student’s parents did not obtain counseling) were “affirmative acts” that rose to the level of conscience-shocking conduct, thereby creating constitutional liability despite the shooter being a private actor.
2. Summary of the Judgment
By a unanimous panel (Judges Kethledge, Larsen, and Mathis), the Sixth Circuit affirmed most of the district court’s dismissals and reversed in part. The court held that:
a. The acts of returning the student’s backpack and “concealing” risk information did not qualify as affirmative acts for purposes of the state-created danger doctrine.
b. Threatening to call Child Protective Services if the parents failed to secure counseling—made in the student’s presence—also did not constitute conscience-shocking conduct. Instead, it was a risk-mitigation measure undertaken for a legitimate governmental purpose.
Accordingly, the plaintiffs’ constitutional claims were dismissed for failure to state a plausible due process violation, and the cases were remanded with instructions to dismiss.
3. Analysis
3.1. Precedents Cited
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189 (1989): Established that a state’s failure to protect private individuals from private violence does not, by itself, create a due process violation unless the state’s actions place the individual in greater danger than before.
County of Sacramento v. Lewis, 523 U.S. 833 (1998): Announced the “conscience-shocking” standard for due process violations when state actors respond to perceived risks.
Doe v. Jackson Loc. Sch. Dist. Bd. of Educ., 954 F.3d 925 (6th Cir. 2020): Recognized the “state-created danger” exception under which government actors may be liable for harms by private individuals if they have taken an affirmative act that increases risk.
McQueen v. Beecher Cmty. Sch., 433 F.3d 460 (6th Cir. 2006): Articulated the three elements of a state-created danger claim: an affirmative act, a special danger to an identifiable victim, and conscience-shocking conduct.
Bukowski v. City of Akron, 326 F.3d 702 (6th Cir. 2003) and Stiles ex rel. D.S. v. Grainger Cnty., 819 F.3d 834 (6th Cir. 2016): Clarified that omissions generally do not qualify as the required affirmative acts.
Estate of Romain v. City of Grosse Pointe Farms, 935 F.3d 485 (6th Cir. 2019): Emphasized the narrow scope of state-created danger liability.
3.2. Legal Reasoning
a. Due Process and State-Created Dangers Doctrine
The Fourteenth Amendment’s Due Process Clause limits state action, not private conduct. Under the “state-created dangers” exception, a plaintiff must plead three elements:
- An affirmative act by a state official that creates or increases risk of private harm;
- A special danger to a specific victim beyond general public risk;
b. Application to the Counselors’ Actions
– Returning the backpack and “concealing” risk: Because the student had the same backpack (and unknown gun) before and after, these acts did not place him in any worse position, nor were they affirmative acts rather than omissions.
– Threat to call CPS: Although arguably an affirmative act, the Sixth Circuit held that threatening to involve protective services was undertaken to mitigate risk, not to increase it. The panel found no plausible inference of callousness or malice; instead, the threat reflected concern and a legitimate government purpose. Thus, the conduct fell short of shocking the conscience.
3.3. Impact
This ruling underscores the stringent requirements for establishing state-created danger liability in constitutional claims. School officials and other state actors who take steps—however imperfect—to mitigate perceived risks will generally be immune from due process challenges unless their conduct is truly alarmingly reckless or malicious. The decision reaffirms the boundary between tort negligence, which remains within state courts, and constitutional due process violations, which require conscience-shocking state conduct.
4. Complex Concepts Simplified
Due Process Clause: A constitutional provision protecting individuals from arbitrary deprivation of life, liberty, or property by the state.
Qualified Immunity: A doctrine shielding government officials from civil damages unless they violated “clearly established” constitutional rights.
State-Created Danger Doctrine: A narrow exception permitting due process claims when state actors’ affirmative actions increase private risks of harm.
Conscience-Shocking Standard: The highest threshold for due process violations—requiring truly egregious, “brutal” or “malicious” state conduct.
5. Conclusion
The Sixth Circuit’s decision in Franz v. Oxford Community School District clarifies that under the Fourteenth Amendment, only state actors’ conscience-shocking affirmative conduct—beyond negligent or even unwise decision-making—can give rise to liability for harms caused by private individuals. By affirming that protective measures taken in good faith (such as warning parents and involving child-welfare authorities) do not offend due process, the court preserves the distinction between tort remedies in state courts and constitutional claims in federal court. The ruling thus sets a durable precedent safeguarding well-intentioned government interventions from being recast as federal constitutional violations.
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