Police Civil Liability for Inappropriate Domestic Violence Response

Police Civil Liability for Inappropriate Domestic Violence Response

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Unformatted text preview: Police Civil Liability for Inappropriate Domestic Violence Response Domestic CRJU E491P, Police Liability Spring 2011, Mr. Smith The History The A primary issue for domestic violence beginning in the 1960s has been the lack of meaningful police response. This was compounded by the general absence of legal remedies available to women who requested, but did not receive, police assistance. Police initially responded to such criticism by becoming more active in the form of counseling and mediation between the two spouses, but these policies did not eradicate the problem. Hence, criticism of the police for their response to domestic abuse became more vocal and victims turned to suits against the police to seek compensation and to effect change. Domestic Violence and Equal Protection Domestic The Fourteenth Amendment’s equal protection clause has been interpreted to mean that the state may not create laws or administrative classifications that discriminate against people within a classification; all individuals who are similarly situated must receive treatment that is similar to what other members of that classification receive. In the context of domestic violence cases, the equal protection issue is typically raised either as a matter of “crime type discrimination” or “gender discrimination.” To analyze these equal protection issues, courts apply either a “minimal scrutiny” or “intermediate scrutiny” analysis. Crime Type Discrimination Crime ‘‘Crime type’’ discrimination occurs when law enforcement officials treat domestic violence cases less seriously than other assault type offenses. In a number of situations, police have been held liable because they provided inferior services to victims of domestic abuse compared to other victims. This is most likely to occur when police create illegal classifications in which non­domestic assault offenders (e.g. stranger assault and battery cases) are treated more harshly (e.g., they are arrested) than perpetrators of domestic assault (e.g., no arrest occurs). Minimal Scrutiny Minimal When police response discriminates on the basis of ‘‘crime type,’’ courts apply a minimal scrutiny standard. Under minimal scrutiny analysis, police may be found liable if ‘‘crime type’’ discrimination is based on: (1) statistical evidence, (2) failure to arrest domestic abusers outside the officer’s presence, (3) failure to dispatch officers to emergency domestic violence calls for assistance, or (4) failure to remove domestic abusers from victim’s home. Crime Type Discrimination Crime Statistical evidence of discrimination While courts allow statistical evidence of crime type discrimination, the United States Supreme Court has established that such evidence cannot alone provide evidence of intentional crime type discrimination. When used in conjunction with other evidence of crime type discrimination, however, research could prove to be the key to a plaintiff’s success. Watson v. City of Kansas City Watson Nancy Watson suffered a long history of domestic abuse from her husband, Officer Ed Watson of the Kansas City, Kansas Police Department. Nancy reported Ed’s frequent abuse to the Kansas City police but Captain Hooks, who responded to the scene, warned Nancy, ‘‘If you ever call the police again, I will see to it that you are arrested and you’ll never see those two kids again’.’ On January 19, 1984, Nancy, aware Ed was following her, drove to the police station and asked that Ed be detained so she could drive home. Arriving home, she found Ed waiting on her and the children. Ed forced Nancy and the children into the house, dead­ bolted the doors, locked the children in their room, then raped and stabbed Nancy. When Kansas City officers responded to a neighbor’s call, they told Nancy the “situation was her fault because she had married Ed.” Nancy sued and presented evidence that 1) Kansas City police arrested known domestic violence offenders at a rate nearly half that of non­domestic assault offenders and 2) the department’s training programs encouraged officers to defuse domestic violence incidents and ‘‘use arrest as a last resort.’’ Given these facts, the United States Court of Appeals for the Tenth Circuit held that Nancy, as a victim of domestic violence, received less police protection than other assault victims. Crime Type Discrimination Crime Failure to dispatch officers to domestic violence calls for assistance Calls to 911 operators categorized as simple assaults received a low priority for police response. Such low­priority calls typically lead dispatchers to wait for officer availability, or to encourage callers to contact social service agencies for assistance. Evidence of an intent to discriminate may be demonstrated if agencies dispatch officers to 911 crime­in­progress calls not related to domestic violence, but do not dispatch officers to in progress domestic violence 911 calls. Navarro v. Block Navarro Maria Navarro was celebrating her birthday at her home when she received a call from the brother of her estranged husband, Raymond, warning her that Raymond was on his way to her house to kill her and any others present. Maria immediately called 911 and told the operator about the warning and that she took it seriously. Learning Raymond had not yet arrived, the operator replied, ‘‘OK, well, the only thing to do is just call us if he comes over there. . . I mean, what can we do? We can’t have a unit sit there to wait and see if he comes over.’’ Fifteen minutes later, Raymond arrived at Maria’s house and shot and killed her and four others. Maria’s relatives sued under Section 1983, arguing that the Los Angeles County Sheriff’s Department policy assigning a lower priority to 911 domestic violence calls than other calls was discriminatory. The 911 operator testified that it was the department’s practice not to classify domestic violence calls as ‘‘emergency procedure’’ calls. She also said that because there were no clearly delineated guidelines for responding to such calls, dispatchers were allowed to freely use their discretion. The United States Court of Appeals for the Ninth Circuit ruled that Section 1983 liability could potentially attach because the Sheriff’s Department did not consider domestic violence as a crime ‘‘in progress,’’ and the practice of not treating domestic violence crimes as emergencies may have led the dispatcher to not send assistance to Maria. The case was remanded for the lower court to determine whether the department had a ‘‘policy or custom” of giving lower priority to domestic violence calls than to non­domestic violence calls. Gender Type Discrimination Gender To ascertain whether a law enforcement domestic violence policy disproportionately and adversely affects women, reviewing courts must determine if the policy is ‘‘neutral in the sense that it is not gender­based.’’ If the policy is not explicitly or implicitly gender­based, the reviewing court must decide if the ‘‘adverse effect” reflects unjust gender­based discrimination. Intermediate Scrutiny Intermediate When police response to domestic violence discriminates on the basis of gender, courts apply an intermediate scrutiny standard. Under intermediate scrutiny analysis, police have been held liable only if the ‘‘gender discrimination’’ was based on: (1) months of apathetic police response, (2) untimely response to 911 calls, (3) failure to enforce a state statute, or (4) obvious animus against women. Gender Type Discrimination Gender Months of apathetic police response Abuse victims often repeatedly ask police for help without any meaningful response and, when suit against the police is filed, the victim may employ the argument that months of apathetic police response provided evidence of gender discrimination. Thurman v. City of Torrington Thurman In October 1982, Tracey Thurman began a long series of calls to the Torrington, Connecticut Police Department complaining of repeated threats of assault and death against her and her child by her estranged husband, Charles, and requesting them to keep him out of her home. Between December 1982 and May 1983, Tracey notified the police five times about Charles’ probation violations and increasingly threatening behavior, including threats to shoot Tracey. In June, Charles went to Tracey’s home and stabbed her repeatedly in the chest, neck, and throat. Responding officers watched Charles repeatedly kick Tracey with their child present. Even after these events and the arrival of additional officers, Charles was not arrested. He was taken into custody only after EMTs placed Tracey on a stretcher and he approached her threateningly. Tracey sued, arguing that police provided less protection to women abused by their male partners than to ‘‘persons abused by someone with whom the victim has no domestic relationship.’’ The United States District Court for the District of Connecticut ruled that when police had ‘‘notice of the possibility of attacks on women in domestic relationships or other persons, they are under an affirmative duty to take reasonable measures to protect the personal safety of such persons in the community.’’ The police department could not justify ‘‘its disparate treatment of women’’ and Tracey received a $1.9 million settlement from the City of Torrington. Gender Type Discrimination Gender Untimely response to 911 calls Domestic violence has historically been categorized as simple assault, and simple assaults typically are considered low­priority calls. As a result, women who use 911 to request police assistance often wait for that help to arrive. In that women are disproportionately the victims in domestic violence incidents; equal protection lawsuits against police can be successful if plaintiffs produce evidence that the lack of, or untimely, response to 911 is evidence of gender discrimination. Didzerekis v. Stewart Didzerekis During the evening of December 26, 1993 at 8:35 p.m. Marsha Brewer­Stewart “frantically telephoned 911’’ seeking police response to her home based on the actions of her husband, Gregory, whose violent tendencies were known to the police department. The officers arrived at Marsha’s home at 8:40 p.m., but did not enter until 9:20 p.m. Upon entry, they found Marsha dead, fatally stabbed by Gregory. Marsha’s family sued the police department for their response to her call for assistance. The United States District Court for the Northern District of Illinois ruled that Marsha was entitled to be ‘‘treated as any other citizen would after making a 911 call,’’ and concluded that the officers’ ‘‘deliberate omission to act was in violation of Marsha’s clearly established constitutional right’’ to be free of gender discrimination. The court cited an on­scene police supervisor’s determination that Marsha’s call did not warrant immediate action because she was a woman, as the source of potential liability. Gender Type Discrimination Gender Failure to enforce a state statute Gender discrimination also may be evidenced by police failure to follow state law. As one approach to addressing police responses, or lack thereof, to domestic violence, many state legislatures promulgated statutes requiring police to inform domestic violence victims of their legal rights. Such policies shift responsibility for dealing with domestic violence from victims to police. This has been supported by courts suggesting that gender discrimination is shown when police routinely inform non­female crime victims of their legal rights, but fail to provide domestic violence victims with information about their legal options. McDonald v. City of Chicago McDonald The case involved a class action Section 1983 equal protection lawsuit filed by six battered women who claimed that the Chicago police ‘‘engaged in a pattern and practice of failing to uniformly enforce’’ the Illinois Domestic Violence Act. The plaintiffs alleged that police routinely failed to make written reports of domestic violence, refused to record victim’s statements of assault frequency and severity, ignored previous assaults by repeat abusers, failed to prevent future abuse by arresting the offender, ignored requests for transportation to shelters, and refused to advise victims about preserving evidence. The United States District Court for the Northern District of Illinois found that the police had created an illegal ‘‘administrative classification’’ in which they treated ‘‘domestic violence abuse reports from women with less priority than other crimes not involving women reporting domestic violence abuse.’’ Gender discrimination may be demonstrated when police do not implement specific statutory provisions, especially if officers fail to write reports and enforce domestic violence laws over extended periods of time. The Status of Equal Protection Claims The Because gender is not considered a “suspect class” by the U.S. Supreme Court, as is race, a gender based law does not trigger “strict scrutiny” review and, accordingly, the plaintiff must establish either a) that the police department’s policy is gender­discriminatory on its face or b) that the policy intentionally discriminates against women as a class; a virtually impossible task. Although the Supreme Court has never addressed an Equal Protection Clause claim in the context of restraining order enforcement, claims of unequal police protection under the Fourteenth Amendment are unlikely to withstand the tremendous burden of establishing the requisite intent to discriminate. Domestic Violence and Substantive Due Process Process Women have also argued that police failure to protect them as victims of domestic violence violates substantive due process under the Fourteenth Amendment. For such a claim to succeed, the victim must show that she was deprived of a liberty interest in that she was denied the right to affirmative police protection for failure to arrest and enforce her restraining order. This claim, however, was effectively rejected in 1989 when the U.S. Supreme Court declared that the Due Process Clause does not require a state to protect its citizens against third party violence. (DeShaney v. Winnebago County Department of Social Services) Domestic Violence and Procedural Due Process Process In 2006, in Town of Castle Rock v. Gonzales, the Supreme Court addressed whether a state’s failure to protect might violate the procedural component of the Due Process Clause. The Court held that there must be a legitimate claim of entitlement, “something more than an abstract desire or a one­sided expectation,” before due process protection is available. Thus, even though a protective order might state that a law enforcement officer “shall use every reasonable means to enforce a restraining order” and that the officer “shall arrest . . . or . . . seek a warrant” when probable cause exists that a violation has occurred;” the Court reasoned that such language gives an officer the option to either (1) arrest or (2) make a reasonable effort to respond, which means that no specific entitlement exists to any specific enforcement procedure. Castle Rock v. Gonzales Castle During divorce proceedings, Jessica Gonzales, a resident of Castle Rock, Colorado, obtained a restraining order against her husband on June 4, 1999, requiring him to remain at least 100 yards from her and their three daughters except during specified visitation time. On June 22, at approximately 5:15 pm, her husband took possession of the three children in violation of the order. Gonzales called the police at approximately 7:30 pm, 8:30 pm, 10:10 pm, and 12:15 am on June 23, and visited the police station in person at 12:40 am on June 23, 1999. The police took no action, despite the husband's having called Gonzales prior to her second call to the police and informing her that he had the children with him at an amusement park in Denver, Colorado. At approximately 3:20 am on June 23, 1999, the husband appeared at the Castle Rock police station and instigated a fatal shoot­out with the police. A search of his vehicle revealed the corpses of the three daughters, whom the husband had killed prior to his arrival. Ms. Gonzales sued, alleging that the town of Castle Rock violated the Due Process Clause of the Fourteenth Amendment when its police officers, acting pursuant to official policy or custom, failed to respond properly to her repeated reports that her estranged husband was violating the terms of a restraining order. Colorado law did not create a personal entitlement to Colorado law did not create a personal entitlement to police enforcement of domestic abuse restraining orders...; although the restraining order statute provided that police ‘shall use’ every reasonable means to enforce a restraining order, a tradition of police discretion coexisted with similar mandatory arrest provisions, enforcement was not always possible or practical, and the statute provided for alternative to immediate enforcement, which was the seeking of an arrest warrant … and although the statute provided for a protected person's direct power to initiate contempt proceedings against restrained person if the order was violated, it did not expressly give the protected person a right to request or demand an arrest. The Last Resort: State Tort Law The An alleged failure of a law enforcement agency to respond to or protect a victim of domestic violence will frequently center around the agency’s failure to perform a duty that is required of it by state law. At common law, the breach of a duty to a person with the result that the person suffers harm by the breach can result in a finding of negligence. Under certain statutes, duties may be owed to certain classes of persons as opposed to the public at large. A first question that must be addressed, then, is whether the duty that is said to be owed is one that arises under common law or under statute. Arthurs v. Aiken County Arthurs Deborah Munn was shot and killed by her estranged husband. Her family sued the Aiken County Sheriff’s Department alleging that the department's negligence and/or gross negligence in responding to her requests for assistance resulted in her death. The claims against the Sheriff’s Department were based on an alleged failure of its deputies to provide protections required by the South Carolina Criminal Domestic Violence Act. Around 9 a.m. on September 30, 1994, Deborah called 911 and complained that her husband had tried to run her off the road that morning as she returned home from work. Deborah’s daughter stated that she observed the husband speaking to officers of the Aiken County Sheriff’s Department around 5 p.m. that same day as she and Deborah left the trailer for school band practice. Around 6 p.m. the same day, Deborah was talking on her home phone to her sister. The sister heard knocking on Deborah's door, and told Deborah to hang up and call 911. Deborah did so and so did her sister. Investigator Coleman and Deputy Cain responded to Deborah’s call. Husband was not present when the officers arrived and Deputy Cain continued to talk to Deborah while Investigator Coleman left to try to locate the husband. When Deborah expressed her fear of Husband, Deputy Cain advised her to go to a safe house. When she declined to leave, he told her she should stay inside behind locked doors and call 911 if the husband returned. Sometime later that evening, Deborah’s nephew went to join his brother at Kneece's Body Shop to work on a race car. The shop was less than 400 yards from Deborah's trailer. The husband was at the shop when nephew arrived, and tried to start a fight. The nephew left and the Sheriff’s Department responded to the nephew's family's 911 call, but their search for the husband was unsuccessful. Around 9:30 or 10 p.m. that night, family members heard screaming from Deborah's trailer followed by shots. The husband had forced Deborah’s neighbor, Rob, to knock on her door by holding a gun to his back. When Deborah answered the door, the husband forced his way in and killed her by shooting her in the head. Deborah’s family sued the Sheriff’s Department Petitioner claiming that it breached statutory duties owed to Deborah under the Criminal Domestic Violence (CDV) Act and under a statute describing the duty of a deputy sheriff to patrol a county. SC Code section 16-25-70 SC (B) A law enforcement officer must arrest, with or without a warrant, a person at the person's place of residence or elsewhere if physical manifestations of injury to the alleged victim are present and the officer has probable cause to believe that the person is committing or has freshly committed a misdemeanor or felony under the provisions of Section 16­25­20(A) or (E), or 16­25­65 even if the act did not take place in the presence of the officer. A law enforcement officer is not required to make an arrest if he determines probable cause does not exist after consideration of the factors set forth in subsection (D) and observance that no physical manifestation of injury is present. The officer may, if necessary, verify the existence of an order of protection by telephone or radio communication with the appropriate law enforcement agency. SC Code section 20-4-100 SC The primary duty of a law enforcement officer when responding to a domestic abuse incident is to enforce the laws allegedly violated and to protect the abused person if facts are found which substantiate the complaint. In such incidents, the law enforcement officer must take the following protective measures: (a) Notify the abused person of the right to initiate criminal proceedings and to seek an order of protection under this chapter. (b) Advise the parties of the importance of preserving evidence. To provide protection to the petitioner and any minor children, the officer may offer or arrange to provide transportation of the abused person to a hospital for treatment of injuries or to a place of shelter or safety and to accompany the abused person to his or her residence to allow for the removal of clothing, medication, and such personal property as is reasonably necessary. The Public Duty Rule The The "public duty rule" recognizes that, generally, statutes which create or define the duties of a public office create no duty of care towards individual members of the general public. An exception to the general rule exists when the statutory duty is owed to individuals rather than to the public at large. Deborah’s family argued that the CDV Act created a special duty to Deborah because it was designed to protect against a particular harm, that is, threats or acts of violence directed by one household member against another. To the extent Deborah was identifiable as the true object of the husband's hostility, the family cannot show where any CDV Act duty was breached. Husband was not present at the scene when the officers arrived, and therefore was not subject to immediate arrest. Further, the evidence shows that Department searched for Husband but could not find him. Finally, Deputy Cain advised Deborah to leave and go to a shelter. The family can point to no section of the CDV Act requiring the law enforcement agency to post a guard under these circumstance. In short, even assuming the CDV Act is implicated by the facts of this case, the family has failed to show the existence of a special duty owed to Deborah, much less breach of such a duty. ...
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This note was uploaded on 06/06/2011 for the course CRJU E491P taught by Professor Smith during the Spring '11 term at South Carolina.

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