Gonzales v. City of Castle Rock

O’BRIEN, Circuit Judge,

dissenting, with whom TACHA, Chief Circuit Judge, and PAUL KELLY, JR., Circuit Judge, join:

The majority opinion ignores guiding principles announced in DeShaney,1 leaving us both adventurous and alone,2 dra-*1131matieally separated from other circuits.3 This decision rests on tenuous grounds and invites litigation in even more dubious cases. For those reasons, I dissent and join the dissents of Judge Kelly and Judge McConnell.

Superficially bowing to Supreme Court precedent, the majority acknowledges the futility of the substantive due process arguments. But the veneer of…