Bright ening the Court's Dark Corners

The U.S. 3rd Circuit Court of Appeals’ recent decision in Bright v. Westmoreland County, 443 F.3d 276 (3d Cir. April 4, 2006) is a welcome clarification of the substantive due process doctrine of “state-created danger.” It also demonstrates why the Third Circuit should amend its internal rules to expressly accord persuasive value to its own unpublished, non-precedential opinions.

Bright held that the state action prong of the Third Circuit’s state-created danger test requires a plaintiff to show that “a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.” Bright makes clear that “[i]t is misuse of state authority, rather than a failure to use it, that can violate the Due Process Clause.” Until Bright, Third Circuit published precedent had disagreed on whether the state action prong could be satisfied only by affirmative conduct or whether state actors could be culpable for omissions. While the Third Circuit reconciled its inconsistent precedent in 2000, it chose to do so in an unpublished non-precedential opinion. Bright is consistent with the 2000 non-precedential opinion.

Affirmative State Conduct