Thomas R. Curry, #50348
Attorneys for Defendants
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
TABLE OF CONTENTS
TABLE OF AUTHORITIES
[begin page 1]
The original Complaint filed by Kathleen R. ("Plaintiff") requested injunctive relief against the City of Livermore ("City") ". . . preventing it or its agents, servants, and employees from spending any public funds on the acquisition, use, and/or maintenance of any computer system connected to the Internet or World Wide Web for which it allows any person to access, display, and/or print obscene material or for which it allows minors access, display, and/or print sexual material harmful to minors." (Complaint, pp. 5-6, ¶¶ 2-3.) The Complaint also requested declaratory relief ". . . stating that the City of Livermore is legally liable for all future damage to plaintiff's children caused by children accessing, acquiring, displaying, and/or printing sexual and other material harmful to minors on any library computer connected to the Internet or World Wide Web." (Id. at p.6, ¶¶ 2-3.) These requests were based on causes of action alleging that the City is wasting public funds, creating a public nuisance and fostering potential damages claims by allowing minors to have unlimited access to the Internet.
The City filed a Demurrer to the original Complaint because it failed to state facts sufficient to state a cause of action. (Code of Civ. Proc., § 430.10, subd. (e).) On October 21, 1998, the Court sustained the City's Demurrer and gave Plaintiff fourteen days leave to amend the Complaint. In doing so, the Court held that the causes of action contained in the Complaint were defective because ". . . the federal Communications Decency Act prohibits the imposition of liability on the City library for providing access to material that is transmitted over the Internet by others. (See 47 U.S.C. § 230, subsection (c)(1).)"
On November 3, 1998, Plaintiff filed a First Amended Complaint for Injunctive Relief ("First Amended Complaint"). The First Amended Complaint alleges a cause of action under 42 U.S.C. section 1983 for a violation of the Plaintiff's Fourteenth Amendment rights to substantive due process. (First Amended Complaint, p. 3, ¶ 48.) The First Amended Complaint, like the original Complaint, does not state facts sufficient to state a cause of action. (Code of Civ. Proc., [begin page 2] § 430.10, subd. (e).) On this basis, the City has filed a Demurrer to the First Amended Complaint.
The fundamental problem with Plaintiff's substantive due process argument is that the Fourteenth Amendment only protects against arbitrary action by the state. In this case, the crux of Plaintiff's argument is that the City took no action to protect her son against offensive material transmitted over the Internet. The City has no constitutional duty to protect Plaintiff's son from the dangers of the Internet. Furthermore, the City has not taken any action either in a legislative or executive capacity that can even remotely be characterized as arbitrary in the constitutional sense so as to implicate substantive due process concerns. The First Amended Complaint should be dismissed without leave to amend.
Plaintiff's fourth cause of action, contained in her First Amended Complaint, is based on 42 U.S.C. section 1983 and alleges that the City has violated her son's Fourteenth Amendment right to substantive due process. (First Amended Complaint, p. 3, ¶ 48.)
Section 1983 provides in relevant part that:
(42 U.S.C. § 1983.)
To state a cause of action under section 1983, the conduct complained of must have: (1) [begin page 3] been committed by a person acting under color of state law;1 and (2) deprived Plaintiff of a constitutional right. (Balistreri v. Pacifica Police Department (9th Cir. 1988) 901 F.2d 696, 699.)
Plaintiff fails to show that the City deprived her or her son of a constitutional right. The City has no constitutional duty to protect Plaintiff's son and has not taken any action that can be characterized as arbitrary in the constitutional sense.
The Due Process Clause of the Fourteenth Amendment provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." (U.S. Const., amdt. 14, § 1.)
In DeShaney v. Winnebago County Department of Social Services (1989) 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249, the United States Supreme Court squarely addressed the purpose and limitations of the Due Process Clause. In DeShaney, the county received numerous complaints that a father routinely beat his son. Although the county took some protective measures, it never tried to remove the child from the father's custody. Eventually, the father administered a beating that left the child permanently brain damaged and profoundly retarded. In upholding judgment in favor of the county, the Supreme Court stated that:
(Id. at 109 S.Ct. p. 1003.)
Although the Supreme Court in DeShaney rejected liability in constitutional tort when the governmental defendant has no connection to the plaintiff other than its ability to render aid, it did recognize "certain limited circumstances" where the Constitution ". . . imposes upon the State affirmative duties of care and protection with respect to particular individuals." (Id. at p. 1004-1005.)
First the Court recognized that ". . . when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being. [Citation and fn.]" (Id. at p. 1005.) The affirmative duty to protect in the custodial setting ". . . arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. [Citation and fn.]" (Id. at p. 1006.) Second, DeShaney suggests that if the state contributes in some way to a person's peril, or if its undertakings worsen the plaintiff's position, a constitutional duty to act may arise:
(Id. at p. 1006.)
[begin page 5]
These two duties have respectively come to be known as the "special relationship" duty and the "danger created duty." Plaintiff has failed to allege facts sufficient to trigger either of these duties.
A duty based on a "special relationship" arises where the plaintiff is truly rendered helpless by his or her relation with the state, as in the case of custody or involuntary hospitalization. (L.W. v. Grubbs (9th Cir. 1992) 974 F.2d 119.) Where the state does not render the plaintiff helpless, no "special relationship" exists. For example, courts have refused to find that the state enters into a "special relationship" with students because it requires them to attend school. (See J.O. v. Alton Community Unit School District 11 (7th Cir. 1990) 909 F.2d 267, 272; and Graham v. Independent School District No. I-89 (10th Cir. 1994) 22 F.3d 991.) Similarly, a "special relationship" does not arise where a person is required to appear in court to participate in various legal proceedings. (See Dorris v. County of Washoe (Nev. 1995) 885 F.Supp. 1383, 1385 ["The state may have required Dorris to appear in court, but it did not thereby assume responsibility for her 'basic human needs' or 'entire personal' life; she retained 'substantial freedom to act.' [Citation.]".)
Plaintiff does not, and cannot, allege that by entering the library her son was rendered helpless or that he was in effect placed in custody by City librarians or the mesmerizing effect of the City's Internet terminals. The City does not have a duty based on a "special relationship."
The Ninth Circuit has addressed the elements of a "danger created duty" in Wood v. Ostrander (9th Cir. 1989) 879 F.2d 583 and L.W. v.Grubbs (9th Cir. 1992) 974 F.2d 119. In both cases, the Court made clear that, in order to base a claim on a "danger created duty," there must be direct affirmative conduct on the part of the state in placing the plaintiff in danger. Here, the Plaintiff has not claimed, nor could she ever claim, that the City took any affirmative direct [begin page 6] action to place her son in danger. If any direct action was taken, it was taken solely by Plaintiff's son when he took the steps necessary to access pornography on the Internet.2
In Wood v. Ostrander, supra, 879 F.2d 583, a state trooper stopped the car in which the plaintiff was riding, arrested and removed the driver, impounded the car, and left the plaintiff stranded in a high-crime area at 2:30 a.m. The plaintiff was subsequently raped. The court held that the direct affirmative conduct of the trooper in arresting the driver, impounding his car, and apparently stranding the plaintiff in a high-crime area, distinguished the plaintiff from the general public and triggered a duty of the police to afford her some measure of peace and safety. (Id. at p. 590.)
In L.W. v. Grubbs, supra, 974 F.2d 119, the State of Oregon hired the plaintiff, a registered nurse, to work in the medical clinic of a medium security prison. Although the state led her to believe that she would not be required to work alone with violent sex offenders, the State selected a known violent sex offender to work alone with the plaintiff in the clinic. In fact, according to his files, the inmate was considered very likely to commit a violent crime if placed alone with a female. The inmate assaulted, battered, kidnaped and raped the plaintiff. The court held that the actions of the state in knowingly assigning the inmate to work with the plaintiff, despite its knowledge of his violent proclivities, and enhancing her vulnerability to attack by misrepresenting to her the risks of attending her work supported section 1983 liability. (Id. at pp. 121-122.)
In contrast to Wood v. Ostrander and L.W. v.Grubbs, here there is no direct state action. [begin page 7] In fact, it is the inaction of the City which is the basis of Plaintiff's claim.
Plaintiff cannot argue that, by merely inviting children to its library, the City has taken sufficient action so as to state a cause of action for a violation of substantive due process. (See First Amended Complaint, p. 2, ¶ 40 ["Upon information and belief, plaintiff alleges that the library advertises itself as a place where children are welcome and that the library puts on special programs to entertain and educate children. Upon information and belief, plaintiff further alleges that the library invites, encourages, and entices children to come to the library and use the resources at the library, including the computers."].) This type of argument was flatly rejected in Carlton v. Cleburne County (8th Cir. 1996) 93 F.3d 505.
The plaintiffs in Carlton were sightseers who were injured after a county bridge collapsed. The plaintiffs argued that, by offering the bridge as a tourist location, the county affirmatively placed them in danger, and thereby created a constitutional duty. The court rejected this argument:
(Id. at pp. 508-509.)
As in Carlton, if any action was taken by the City in inviting children to its library, it was directed towards the general public. This type of general indirect contact has never been recognized as "state action" for the purposes of the Fourteenth Amendment. (See Martinez v. California (1980) 444 U.S. 277, 286, 62 L.Ed.2d 481, 100 S.Ct. 553, 559 [Girl's death was too remote a consequence of parole officers' action in releasing murderer because ". . . the parole board was not aware that appellants' decedent, as distinguished from the public at large, faced any special danger."]; Aaitui v. Grande Properties (1994) 29 Cal.App.4th 1369, 1383 [City's failure to abate unsafe pool was not directly related to child's drowning and was ". . . not the stuff of which the Supreme Court has declared constitutional protections . . . ."]; Fleming v. State of California (1995) 34 Cal.App.4th 1378 [Parole officer's release of murder and failure to arrest him after he left the state was insufficient to constitute a deprivation of substantive due process.].)
DeShaney governs this case. The City does not have a constitutional duty to protect Plaintiff's son from his own actions or actions of third-parties who transmit offensive material over the Internet.
Regardless of the existence of a constitutional duty, the allegations advanced by Plaintiff fail to show that the City arbitrarily and oppressively exercised its power in violation of substantive due process.
Due process protection in the substantive sense limits what the government may do in [begin page 9] both its legislative and executive capacities. (County of Sacramento v. Lewis (1998) ___ U.S. ___, 118 S.Ct. 1708, 1716, 140 L.Ed.2d 1043.) The criteria used to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a governmental officer that is at issue. (Id.)
The allegations contained in the First Amended Complaint involve both legislative and executive action. To the extent that the allegations involve the adoption and implementation of the Library's Internet Policy, they relate to legislative action.3 To the extent that the Plaintiff is alleging that the Library ". . . invites, encourages, and entices children to come to the library and use the resources at the library, including the computers" and ". . . has never publicly stated that it has the policy of allowing minors to view obscenity and pornography on its computers . . .", the allegations relate to executive action. (First Amended Complaint, p. 2, ¶¶ 40, 41.) Regardless of the type of action alleged, Plaintiff fails to state a cause of action for a violation of substantive due process.
The court does not sit as a super-legislature to determine the wisdom, need, and propriety of legislation that touches on social issues. (See Griswold v. Connecticut (1965) 381 U.S. 479, 482, 85 S.Ct. 1678, 1680, 14 L.Ed.2d 519) Therefore, absent the involvement of a fundamental right,4 "[i]f the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied . . . ." [begin page 10] (Nebbia v. New York (1934) 291 U.S. 502, 537, 54 S.Ct. 505, 516, 78 L.Ed. 940.) Furthermore, "every possible presumption" is in favor of the validity of the legislation. (Id. at 291 S.Ct. 516.)
The Library's Internet Policy is reasonably related to the City's legitimate goal of allowing ". . . each individual to have access to constitutionally protected materials . . ." (see Library's Internet Policy discussed in Initial Memorandum, p. 3.), and is presumed to be constitutionally valid.
The United States Supreme Court has repeatedly emphasized that only the most egregious official conduct can be said to be "arbitrary in the constitutional sense." (County of Sacramento v. Lewis, supra, 118 S.Ct. 1708, 1716, citing to Collins v. Harker Heights (1992) 503 U.S. 115, 129, 112 S.Ct. 1061, 1071, 117 L.Ed.2d 261.) Therefore, the cognizable level of executive abuse of power is that which "shocks the conscience". (Id.)
The type of conduct which "shocks the conscience" was recently discussed in detail by the United States Supreme Court County of Sacramento v. Lewis, supra,118 S.Ct. 1708, which involved substantive due process claims arising from the unintentional killing of an individual by law enforcement officers:
(Id. at pp. 1717-1718.)
The Court in Lewis then went on to explain that the level of culpability that shocks the conscience in one environment may not be ". . . so patently egregious in another . . .", and that ". . . substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience-shocking." (Id. at p. 1718.)
The plaintiffs in Lewis contended only that the officers had acted in "conscious disregard " of the individual's life. Based on this, the Court held that the plaintiff's claims did not rise to the level of culpability necessary to implicate a substantive due process theory of relief. (Id. at p. 1721.) The Court held that ". . . in such circumstances only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation." (Id. at pp. 1711-1712.)
In this case, the offensive conduct alleged appears to be the City's failure to adequately warn parents and children of the potential dangers associated with having a policy of unlimited Internet access. This does not rise to the level of conscience-shocking as described in Lewis.
In Collins v. City of Harker Heights, supra, 112 S.Ct. 1062, the United States Supreme [begin page 12] Court held that a failure to warn of potential dangers in the employment setting could not be characterized as arbitrary, or conscience-shocking, in a constitutional sense. The plaintiff in Collins was the widow of a city sanitation department employee who died of asphyxia after entering a manhole to unstop a sewer line. In rejecting the plaintiff's claim that the city's "deliberate indifference" to her husband's safety was conscience-shocking governmental action, the court stated the following:
(Id. at p. 1070.)
As in Collins, Plaintiff's allegations cannot be properly characterized as arbitrary, or conscience-shocking, in a constitutional sense. Plaintiff's attempt to simply repackage her defective state statutory causes of action as constitutional violations must fail. Something more [begin page 13] than this is needed to support a substantive due process claim.
The Due Process Clause does not protect Plaintiff and her son against the dangers
inherent in living in a free society. There is no constitutional right to a safe Internet.
The First Amended Complaint should be dismissed without leave to amend.