Jaycee Dugard has filed suit against the U.S. government, alleging that the failure of law enforcement officers to adequately monitor her captor – a federal parolee – contributed to her nearly twenty-year confinement in a California backyard, during which time she endured multiple rapes.  In doing so, Dugard challenges decades-old precedent maintaining that law enforcement officers have no constitutional duty to protect persons from harm.  Does her case stand a chance?

In the U.S., probably not.  In DeShaney v. Winnebago County, the Supreme Court held that the failure of social service workers to protect a child from his violent father did not breach any substantive constitutional duty.  The child had no substantive constitutional right to police protection.

Sixteen years later, the Court extended its holding in DeShaney, ruling that a police department’s failure to enforce a protective order did not violate the procedural rights of the order’s recipient.  In Town of Castle Rock v. Gonzales, Jessica Gonzales tried desperately to get local police to find and arrest her estranged husband, who had violated a protective order by kidnapping their young children.  Even though state law specified that officers “shall…enforce” temporary restraining orders, police declined to pursue Gonzales’s husband, who subsequently murdered the couple’s three children.

The Court ruled that the restraining order’s “shall…enforce” language did not endow Gonzales with an entitlement to police protection.  Writing for the majority, Justice Scalia stated, “A well established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.”  Gonzales’s contention that “mandatory” meant “mandatory” was therefore unfounded.

Though Jaycee Dugard’s lawsuit seems to be a long shot in the U.S., the Christian Science Monitor points out that international tribunals could be more sympathetic to Dugard’s claims.  Indeed, after Gonzales lost her Supreme Court case, she pursued a petition with the Inter-American Commission on Human Rights, claiming that the U.S.’s failure to more aggressively protect her and her children from domestic violence violated international norms of human rights.  Last month, the Commission agreed, labeling what happened to Gonzales a human rights violation.

The IACHR’s decision calls into question American conceptions of fundamental rights, which have long eschewed affirmative entitlements to governmental aid.  In the U.S., there is no federal obligation to fund abortions or other medical services (Harris v. McRae) or provide adequate housing (Lindsey v. Normet).  Reasonable minds can disagree about whether the American system is a good thing; but the IACHR’s opinion suggests that, at least in the eyes of the international community, it is a weird thing.  Jaycee Dugard will likely not prevail in her suit against the U.S. government.  But the question remains: are we okay with that?