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The 3rd U.D. Circuit Court of Appeals’ recent decision in Bright v. Westmoreland County (April 4, 2006) is a welcome clarification of the substantive due process doctrine of “state-created danger.” It also demonstrates why the 3rd Circuit should amend its internal rules to expressly accord persuasive value to its own unpublished, nonprecedential opinions. Bright held that the state action prong of the 3rd Circuit’s state-created danger test requires a plaintiff to show that “a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.” Bright makes clear that “[i]t is misuse of state authority, rather than a failure to use it, that can violate the Due Process Clause.” Until Bright, 3rd Circuit published precedent had disagreed on whether the state action prong could be satisfied only by affirmative conduct or whether state actors could be culpable for omissions. While the 3rd Circuit reconciled its inconsistent precedent in 2000, it chose to do so in an unpublished non-precedential opinion. Bright is consistent with the 2000 non-precedential opinion. Until 1997, the 3rd Circuit plainly held that state-created danger required affirmative state conduct. The court held en banc in D.R. ex rel. L.R. v. Middle Bucks Area Vocational Technical School that to fit the state-created danger exception to the general rule that the state has no duty to protect against private violence, a plaintiff must show “affirmative acts” by the government increased the risk of harm. The 3rd Circuit refused to adopt the state-created danger theory on the facts of D.R. because the sexual assaults the plaintiff children suffered at school were not attributable to state action. Rather, the victims alleged a series of omissions by state actors: failure to assign an experienced teacher, failure to supervise the classroom, failure to investigate, and failure to report abuse to parents or other authorities. In 1997, the court retreated from its holding that state-created danger required affirmative state action and shifted the focus to the foreseeability of the harm. The 3rd Circuit’s precedent in Morse v. Lower Merion School District appeared to remove the requirement of affirmative government conduct and to suggest that where the harm suffered by plaintiff was foreseeable, an omission by the state would satisfy the plaintiff’s burden. Morse stated: “[T]he dispositive factor appears to be whether the state has in some way placed the plaintiff in a dangerous position that was foreseeable, and not whether the act was more appropriately characterized as an affirmative act or an omission.” This was a considerable expansion of the state-created danger doctrine since government actors � such as social workers, police officers, school officials, firefighters, and security guards � frequently undertake to protect discrete classes of citizens from foreseeable dangers. In 2000, the 3rd Circuit reconciled its apparently inconsistent precedents on the need for affirmative state conduct � but chose to do so in an unpublished, non-precedential decision. There, the author of Morse � the precedent that eliminated the requirement of affirmative government conduct � reconciled the apparently conflicting precedents by clarifying that a government’s failure to rescue the plaintiff from harm could only be culpable when an affirmative duty to rescue arose from government intervention that increased the risk of harm. The nonprecedential opinion apparently read as dicta the Morse precedent’s suggestion that inaction could be culpable in the face of foreseeable harm. That clarification was a significant retreat from the broad language in the Morse 3rd Circuit precedent. But the reconciliation was not precedential. Had the 3rd Circuit’s significant narrowing of its 1997 Morse precedent itself been precedential, district courts and litigants could have relied on it to reconcile the inconsistent dictates on the state action prong of the state-created danger test. The 3rd Circuit now has clarified in Bright that state-created danger requires affirmative state conduct and that any language to the contrary in Morse is dicta. That holding is consistent with the court’s 2000 nonprecedential opinion. Bright reconciled earlier 3rd Circuit precedent with the suggestion in Morse that an omission could be sufficient. Writing for the majority, Judge Walter K. Stapleton quoted the Morse “observ[ation]” that foreseeability of harm rather than affirmative action was required but judged it “ important to put this observation in context.” Over vehement dissent, the majority concluded that the omission language was essentially dicta: “[W]e do not read Morse‘s language to suggest liability can be based on an omission alone or a failure to act. We read it to clarify that the relevant test involves asking whether a state actor’s behavior constituted an affirmative act, and, if so, whether the affirmative act created a foreseeable opportunity for harm.” The dissent in Bright focused entirely on the majority’s reading of state-created danger to require affirmative state action and addressed the tension between that holding and Morse. Rehearing en banc was denied in May. The apparent doctrinal inconsistency in the 3rd Circuit’s precedent between 1997 and 2006 may have led plaintiffs and defendants to value cases differently, potentially leading to more litigation, fewer settlements, and the additional need for judicial decision making. The 3rd Circuit’s 1997 apparent approval of omissions by government actors as satisfying use of state authority likely encouraged litigation and impeded settlement by causing litigants and district courts to overvalue claims where the state actor stood idly by while plaintiff suffered harm not of the state’s making. Litigants and district courts would have known of the 1997 precedent that apparently expanded state-created danger to include inaction but would be unlikely to have known of the 2000 nonprecedential retreat from that holding since nonprecedential opinions issued by the 3rd Circuit before 2002 are not available in electronic form. Those relying on the published law may have perceived constitutional claims when the facts were more likely to be viewed by the 3rd Circuit as state law torts, thus encouraging litigation, impeding settlement, and undermining the efficiency rationale for non-precedential opinions. Bright reconciled the apparent inconsistency between 3rd Circuit precedents by clarifying, in precedent, that state-created danger does require affirmative state conduct. Bright also helps illustrate why the 3rd Circuit should amend its internal rules to expressly accord persuasive value to its own unpublished, nonprecedential opinions. About 80 percent of federal appellate decisions are nonprecedential. The practice is justified on efficiency grounds, as a mechanism for overburdened appellate courts to manage their dockets. But once an issue has been resolved at the appellate level, it is not efficient for that issue to be relitigated before the district courts, as happened here. Here, in a nonprecedential opinion in 2000, the 3rd Circuit clarified that affirmative state conduct is required for state-created danger, notwithstanding language in Morse. The Bright holding is consistent with the earlier nonprecedential opinion. While the 3rd Circuit does not limit litigant or district court reliance on its non-precedential opinions � which is consistent with pending new Federal Appellate Rule 32.1 � district courts might more freely rely on nonprecedential opinions as legitimate authority, akin to appellate dicta, if the opinions expressly carried persuasive value. Persuasive value is not precedential value; the argument must persuade on its own merits, not because the opinion is binding. Conferring persuasive value would serve the values of uniformity and predictability by reducing district court reluctance to rely on nonprecedential opinions. That would promote appellate judicial economy by reducing the likelihood of relitigation of issues resolved at the appellate level. Here, if the 3rd Circuit’s significant narrowing of its Morse precedent in 2000 had expressly carried persuasive value (and had it been electronically available and published in hard copy, as nonprecedential opinions are today), district courts and litigants could have relied on it to reconcile the inconsistent dictates on the state action prong of the state-created danger test, which would have conserved overburdened appellate judicial resources. Regardless, Bright now has brought welcome clarity to state-created danger precedent. Editor’s note: The ideas here are further explained in The Perils of Unpublished Non-precedential Federal Appellate Opinions: A Case Study of the Substantive Due Process State-Created Danger Doctrine in One Circuit , 81 Washington L. Rev. 217 (2006). • SARAH E. RICKS is a clinical associate professor of law and co-director of the Pro Bono Research Project, Rutgers University School of Law-Camden.

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