Abstract
In DeShaney v. Winnebago County Department of Social Services, the Supreme Court held that the State has no constitutional duty to protect individuals from violence committed by private third parties. An exception to this rule exists when the State has a special relationship to the plaintiff immediately preceding the harm. The DeShaney Court sharply proscribed the scope of the special relationship exception, holding that it only applies when the State has a plaintiff in custody. This effectively closes the door on relief for the vast majority of 42 U.S.C. § 1983 plaintiffs.
This Article proposes a new special relationship test that examines not the State’s relationship with the plaintiff, but the State’s relationship with the third party who causes harm. This test requires a court to find that three elements exist to grant a § 1983 claim: (1) the state or local official had actual knowledge that the third-party offender was prohibited from having guns; (2) the official acted with deliberate indifference in failing to disarm the third party or otherwise failing to prevent the third party from possessing firearms; and (3) that deliberate indifference caused the third party to commit an act of gun violence which deprived another person of her constitutional right to life. The Article then describes two recent mass shootings, how the existing special relationship exception did not provide victims with relief, and how this expanded test would apply in each case.
As the nation grapples with the ongoing, pervasive threat of gun violence, this Article provides a critical path forward for courts to hold state and local governments accountable when they have the means to prevent a tragedy and failed to do so.
Repository Citation
Bonnie Carlson,
Re-evaluating Deshany in an Era of Gun Violence and Government Inaction,
109 Marq. L. Rev. 1365
(2026).
Available at: https://scholarship.law.marquette.edu/mulr/vol109/iss4/5