Abstract
The United States Supreme Court’s holding in the seminal case of DeShaney v. Winnebago County Department of Social Services has long foreclosed the viability of a wide array of failure-to-protect claims under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The linchpin of DeShaney is a “constitutional duty” analysis that is implicated only in select circumstances and serves as a threshold inquiry and a gatekeeping device. With the New Mexico Supreme Court’s articulation of a foreseeability-free duty analysis in Rodriguez v. Del Sol Shopping Center in 2014, and the Legislature’s passage of the New Mexico Civil Rights Act in 2021, the stage is set for a rejection of the DeShaney analysis and the development of a new jurisprudence of constitutional duty in this state—free of threshold inquiries and embracing the structural similarity of common-law torts and “constitutional torts.” By embracing this new jurisprudence of constitutional duty, New Mexico may assume the national pole position in testing and experimenting with Justice William Brennan’s observation in Paul v. Davis that there should be no distinction, for constitutional purposes, between tortious conduct committed by a private citizen and the same conduct committed by state officials under color of state law.
Recommended Citation
Levi A. Monagle & Aaron E. Whiteley,
A New Jurisprudence of Constitutional Duty: Moving Beyond DeShaney Through the NMCRA,
54
N.M. L. Rev.
487
(2024).
Available at:
https://digitalrepository.unm.edu/nmlr/vol54/iss2/8
