First Circuit Declines To Impose Liability Under 42 U.S.C. (U.S. Code) 1983 for Criminal Attack by Furloughed Inmate: Estate of Gilmore v. (versus) Buckley, 787 F.2d 714 (1st Cir.), Cert. Denied, 107 S. Ct. (Supreme Court) 270 (1986)

• NCJ Number: 115781
• Journal: Suffolk University Law Review Volume: 21 Issue: 1 Dated: (Spring 1987) Pages: 215-235
• Author(s): L R Harwell
• Date Published: 1987
• Length: 21 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America
• Note: *This document is currently unavailable from NCJRS.

Annotation

This case note examines the Federal courts' treatment of claims brought under section 1983 for criminal acts of third parties and the problematic application of tort principles in analyzing claims under 42 United States Code section 1983 for acts of violence by private third parties, with attention to Estate of Gilmore v. Buckley.

Abstract

In Estate of Gilmore v. Buckley, the First Circuit Court of Appeals considered whether a criminal attack by a furloughed inmate (Bradford Prendergast) with a known history of violent behavior toward Patricia Gilmore could incur municipal liability under section 1983 when Prendergast murdered Gilmore within 24 hours of his release on furlough from prison. The 'Gilmore' court held that the various State and county officials having custody of the assailant owed no affirmative duty to protect the victim from the attack and therefore had not deprived her of life without due process under the 14th amendment. Because the assailant was not an agent of the State, the court declined to find that a special relationship existed between the victim and the State and affirmed the district court's dismissal for failure to state a claim under section 1983. The 'Gilmore' court erred, because a constitutionally protected special relationship and correlative duty to prevent foreseeable harm should arise where the State knows of a specific threat to an individual and maintains custody or control over either the crime victim or its perpetrator. Where these circumstances exist, courts should impose a duty to protect from third party attacks. 85 footnotes.