In 1989, the U.S. Supreme Court, in DeShaney v. Winnebago County. Department of Soc. Servs., interpreted the Fourteenth Amendment to the U.S. Constitution to impose a duty upon the government to act when the government itself has created dangerous conditions – this interpretation created the legal principle known as State Created Danger. The 9th Circuit has interpreted the State Created Danger doctrine to mean that a governmental entity has a duty to act when the government actor “affirmatively places the plaintiff in danger by acting with ‘deliberate indifference’ to a ‘known or obvious danger.’”
The State Created Danger principle has three elements. First, the government’s own actions must have created or exposed a person to an actual, particularized danger that the person would not have otherwise faced. Second, the danger must have been one that is known or obvious. Third, the government must act with deliberate indifference to the danger.
Municipal attorneys are closely reviewing the State Created Danger principle as it relates to the use of public spaces by persons experiencing homelessness. Cities choosing to respond to the homeless crisis by creating managed homeless camps, where unhoused persons can find shelter and services, may open the door to State Created Danger based claims of wrongdoing (e.g., failure to protect from violence, overdoses, etc. within the government sanctioned camp and/or designated areas).
Sanctioning or designating a camp puts additional liability and welfare responsibilities on the municipality. When a government sanctioned camp/area is created, cities should strive to create an environment that would not reasonably expose a person living in the camp to a known or obvious danger they would not have otherwise faced. And if there is a danger to living in the camp, a city should not act with deliberate indifference to any known danger in allowing persons to live in the camp.