In the 1988 case of DeShaney v. Winnebago County Department of Social Services, Joshua DeShaney, a minor who had been severely beaten by his father and subsequently suffered significant brain damage, sued the department for failing to prevent this abuse despite being aware of it. The Supreme Court ruled in favor of Winnebago County DSS with a 6-3 decision. The court held that while state agencies may have an ethical or moral duty to protect citizens from private violence, they are not constitutionally required to do so unless there is a special custodial relationship between the individual and the state (such as incarceration). In other words, because Joshua was not in state custody at any point during his ordeal but remained under his father's care throughout - even though social services knew about potential danger - no constitutional violation occurred when they failed to intervene more decisively.

In the DeShaney v. Winnebago County Department of Social Services case, Justice Brennan's dissenting opinion argued that the majority had misinterpreted the Due Process Clause of the Fourteenth Amendment. He contended that when a state has knowledge of child abuse and fails to protect a child from such harm, it is indeed violating their constitutional rights. The state's inaction or failure to intervene effectively makes them complicit in this violation. Furthermore, he criticized the majority for ignoring precedents where states were held accountable for failing to protect individuals from third-party harms under similar circumstances. Ultimately, Brennan believed that Joshua DeShaney’s substantive due process rights were violated by Winnebago County’s deliberate indifference towards his safety and wellbeing.