DeShaney "establishes the possibility that a constitutional duty to protect an individual against private violence may exist in a non-custodial setting if the state has taken affirmative action which increases the individual's danger of, or vulnerability to, such violence beyond the level it would have been at absent state action

It is not clear, under DeShaney, how large a role the state must play in the creation of danger and in the creation of vulnerability before it assumes a corresponding constitutional duty to protect

—holding that complaint alleging that police chief failed to act to perform his duties because of his close personal relationship with perpetrator was insufficient to establish a violation, but that specific allegations that he actively prevented other officers from doing so could support a claim

—adopting the state-created danger theory in the context of a § 1983 claim brought on behalf of a woman killed by her estranged husband against a police chief who allegedly directed his officers to ignore her pleas for police assistance

That said, circuit courts in these types of due process cases have repeatedly held that district courts must grant plaintiffs an opportunity to amend their claims to allege an affirmative act by state actors.

"[T] he state may not `selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause.'"

A number of the federal circuits, including the Third Circuit, have construed this language as supporting "a state-created danger theory to establish a constitutional claim under 42 USC [A.] § 1983."

The plaintiffs asserted that the chief of police had prevented police officers from enforcing this restraining order because the husband was a close friend of his.

The Eighth Circuit held that that allegation "presents a claim that the violence the decedents were subjected to was not solely the result of private action, but that it was also the result of an affirmative act by a state actor to interfere with the protective services which would have otherwise been available in the community—with such interference increasing the vulnerability …