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Case Summaries: Law Enforcement Response

Sixth Circuit Court of Appeal Rejects Section 1983 Lawsuit Against Franklin County Commissioners and Sheriff

The Sixth Circuit U.S. Court of Appeals confirmed the judgment of the federal district court granting summary judgement against the plaintiffs federal claim and remanding her state-law claim to Ohio state court. In this case, Phyllis May, the Administratrix of Deborah Kirks estate, filed suit against a Franklin Township police officer, Franklin County, and the Franklin County Sheriff, alleging both federal due process and equal protection claims (under 42 U.S.C. 1983) and a wrongful death claim under Ohio law. On August 13, 1998, after three 911 calls by Kirk to the Franklin County Communications Center and one visit by the police officer to the parties residencewhere he left after standing by the front door and not hearing or seeing any signs of a struggleKirks boyfriend killed her. Plaintiff abandoned the equal protection claim in district court, and the plaintiff and police officer later settled their case. The trial court granted summary judgment dismissing the other federal claims and plaintiff appealed. Plaintiff argued, under a substantive due process theory, that Franklin Countys act of dispatching an officer to the scene of the altercation created or increased the risk of harm to the victim and that the countys subsequent clearing of the police call at the scene without intervening in the dispute heightened the risk of harm to her. However, the Court of Appeals ruled that plaintiff had not produced any evidence that Franklin Countys dispatch of police to the victims apartment created or increased the risk of harm to her. Further, it was the officers decision, not that of Franklin County, to clear the call, and therefore, the clearing of the call did not constitute state action by Franklin County. The Court of Appeals also affirmed the district courts decision to remand the state-law wrongful death claim to the state court after noting that it was deeply troubled by the Franklin County dispatchers failure to follow the established procedures (asking eight standard questions of callers) during the first 911 call and the dispatchers failure to accurately estimate the urgency of the second call. May v. Franklin County Commissioners (2006), 437 F.3d 579.

Keywords: "police liability" "law enforcement" "failure to protect" immunity

Date: 9/12/2006


Gonzales v. City of Castle Rock

Federal Appeals Court Allows Failure to Protect Claim Against Police Department: The 10th Circuit U.S. Court of Appeals reversed the trial courts dismissal of a domestic violence victims procedural due process claim against the Castle Rock, Colorado police department. Plaintiff, Ms. Gonzales, had a restraining order excluding Mr. Gonzales from the family home and the children, except for very specific vacation times. Mr. Gonzales kidnapped their three daughters from in front of the family home. Ms. Gonzales called the police department and asked them to enforce the restraining order. The girls were murdered by Mr. Gonzales. The court stated, "[W]e are persuaded Ms. Gonzales complaint states a claim that she possessed a protected property interest in the enforcement of terms of her restraining order and that the officers arbitrary denial of that entitlement violated her procedural due process rights." Plaintiff had a protected property interest entitled to due process protection because Colorado statutes required police to enforce domestic violence restraining orders and established a mandatory arrest policy for violations of such restraining orders. Gonzales v. City of Castle Rock, Case No. 01-1053 (10th Cir. 10/15/2002).

Keywords: police liability,duty to protect,law enforcement

Date: 10/4/2004


Alleged Abuser Sues City and County For Negligent Arrest:

The husband was arrested for assaulting the wife. As part of the criminal proceedings, a no-contact order was issued. Later, the order was recalled at the request of the wife. However, the rescission was not entered on the law enforcement computer database. Thereafter, the husband was mistakenly arrested for a violation of the order. Appellants then filed an action against the county based on negligence. The county claimed that a city employee was responsible for the error. Both parties filed motions for summary judgment. Appellants filed a motion to join the city as a necessary party. Appellants sought review after their motions were denied and the county's motion for summary judgment was granted. In reversing, the court determined that the county failed to establish that the fulfilled its duty in rescinding the order under Wash. Rev. Code 10.99.040(5) (1997). The confusion surrounding the no-contact order created an inference that the county failed in its duty. Moreover, the trial court should have allowed appellants to join the city as a party. Ropp v. County of Spokane, 2002 Wash. App. LEXIS 3024 (Wash. Ct. App.).

Keywords: police liability, law enforcement, duty to protect, failure to protect

Date: 5/16/2003


officer Entitled To Qualified Immunity:

In three calls to 911 made by the decedent from her apartment, she could be heard screaming and crying and a male voice could be heard yelling. The moving officer and other police officers were not told that the call was a priority and were not told the contents of the calls. The officers went to the apartment, knocked on the door, tried to look in the windows, cleared the call, and left. The officers did not know that the decedent was being restrained inside by her ex-boyfriend, who later killed her. The administrator alleged that the officer violated the decedent's right to life and personal security. The administrator could not allege a constitutional violation based upon either a custodial-type setting or a situation in which the police displaced other means of help or protection. However, under the state-created-danger (special relationship) theory, the administrator sufficiently pled that the officer had a duty to protect the decedent after emboldening the ex-boyfriend by going to her apartment, knocking, and then leaving. But the officer's actions were reasonable and did not shock the conscience. Therefore, the officer's actions did not violate the decedent's constitutional rights and was entitled to qualified immunity. May v. Franklin County Bd. of Com'rs, 2003 U.S. App. LEXIS 4622 (6th Cir., 3/12/2003).

Keywords: police liability, law enforcement, duty to protect, failure to protect

Date: 5/16/2003


Sheriff's Acts Violated Statutory Duty of Care:

The decedent was murdered by the irate husband of the woman the decedent was visiting. The husband had been confined to the custody of the sheriff as a result of several charges filed against him for committing domestic violence against his estranged wife. During his incarceration, the husband wrote several letters to his wife threatening her with numerous acts of violence, which the sheriff's office retained in the husband's file. Despite a court's order that no bond be given to the husband, the sheriff released the husband from custody on bond. The estate claimed that the sheriff's negligent release of the husband was the proximate cause of the decedent's death. The appellate court held that the estate properly alleged a statutory duty of care, and that such duty fell within the special duty exception recognized by state precedent. The appellate court held that pertinent Florida statutes, concerning the taking into custody of persons accused of domestic violence, codified the special duty exception. The appellate court held that the sheriff's acts deprived the wife of critical information that might have saved the decedent's life and thus violated the statutory duty of care. Estate of Brown v. Woodham, 2003 Fla. App. LEXIS 3482; 28 Fla. L. Weekly D 765 (1st Ct. App. Fl.).

Keywords: police liability, law enforcement, duty to protect, failure to protect

Date: 5/16/2003


Section 1983 Action Against Police Department Survives Motion To Dismiss

The Tenth Circuit U.S. Court of Appeals has found that a police failure to enforce a domestic violence restraining order can lead to a valid section 1983 (federal civil rights due process lawsuit against the police department.; Gonzales v. City of Castle Rock, 307 F.3d 1258 (10th Cir. 2002). Ms. Gonzales had obtained a restraining order against her husband in connection with their divorce proceedings.; The restraining order had been served on Mr. Gonzales and entered into a computerized database available to all state and local law enforcement agencies.; Pursuant to the order, Mr. Gonzales was excluded from the home and was prohibited from molesting or disturbing the peace of Ms. Gonzales or the girls.; While in the middle of the divorce, Mr. Gonzales kidnapped his three young daughters.; Ms. Gonzales repeatedly called the police that night and the police refused her request to try to find her daughters and to enforce the restraining order.; Instead, they told her to wait and see if Mr. Gonzales returned with the kids later that night.; At about 3:20 a.m., Mr. Gonzales arrived at the Castle Rock Police Station, where he opened fire with a semi-automatic handgun he had purchased after abducting the girls.; The police shot and killed him.; The police then discovered the three girls in the cab of his truck.; Mr. Gonzales had killed them sometime earlier in the evening. Ms. Gonzales brought a 42 U.S.C. Section 1983 lawsuit against the city and several police officers on behalf of her children, claiming the defendants violated the plaintiffs' rights to substantive and procedural due process for failing to enforce the restraining order.; The U.S. district court granted the defendants' motion to dismiss, but on appeal the U.S. Court of Appeals for the Tenth Circuit affirmed in part and reversed in part.; Tracing the U.S. Supreme Court decision in DeShaney v. Winnebago, which found that state actors are not liable for acts of private violence, the Court of Appeals concluded that the plaintiffs' substantive due process claim must fail because the defendants';act;did not increase or enhance the danger posed by Mr. Gonzales.; However, the Court of Appeals reversed the district court's proceedings.; The Court of Appeals stated, "The governing statute provides that an officer shall use every reasonable means to enforce an order and shall arrest a restrained person when the officer has information amounting to probable cause that the person has violated the order...The complaint in this case...indicates that defendant police office officers used no means, reasonable or otherwise, to enforce the restraining order.; Under those circumstances, we conclude that Ms. Gonzales has effectively alleged a procedural due process claim with respect to her entitlement to enforcement of the order by every reasonable means."

Keywords: restraining, kidnapped, police, due process divorce, molesting, domestic violence

Date: 3/21/2003


Federal Court Magistrate Uphold Right To Sue Court officer Who Allegedly Failed To Protect DV Victim

A federal district court magistrate has denied a motion to dismiss a federal civil rights (Section 1983) action against a Montgomery County pretrial services officer (court employee) who had allegedly created a "special danger" (increased danger) for a domestic violence victim by improperly releasing the perpetrator and by failing to properly monitor the perpetrators electronic home detention. The perpetrator then went after his victim and murdered her, and the victims estate brought this lawsuit. Plaintiff claimed that the pretrial services oficer's conduct violated the victim's 14th Amendment due process rights. The court in this case held that the Plaintiff stated a claim for which relief could be granted under the "special danger" doctine. This court ruling means that victims of domestic violence have a right to sue law enforcement or court employees whose actions increase the danger for those victims. Young vs. Smith, No. C-3-01-376 (S.D. Ohio, May 21, 2002).

Keywords: liability, government, constitutional, unconstitutional, "due process", DeShaney

Date: 8/26/2002


Protection order Creates Property Right

A protective order creates a property right which causes government to incur a duty to protect the beneficiary of such an order. Once such a property right is determined to exist, the government's failure to adequately perform this duty may constitute a denial of a right to procedural due process. Siddle v. City of Cambridge, 761 F.Supp. 503 (S.D. Ohio 1991).

Keywords: enforce, liability, duty to enforce, officer, enforcement

Date: 8/23/2002


Municipal Liability

A woman who called police and pleaded for them to arrest her husband for violating an order of protection, was refused because officers had not witnessed a violation. Police monitored the home for an hour, left for a meal break, and the woman was stabbed to death. The court reversed a summary judgment for the police, ruling that potential liability may arise from a special relationship between the municipality and the victim, where a protection order was issued for her and officers made an affirmative undertaking on her behalf. Mastroianni v. County of Suffolk, 691 N.E.2d 613 (N.Y. 1997).

Keywords: enforce, liability, duty to enforce, officer, enforcement

Date: 8/23/2002


No Qualified Immunity For Police officer

Police officer not entitled to qualified immunity because his actions were of such a degree to restrain or prevent plaintiff from protecting her or her childs reasonable safety; plaintiff mothers substantive due process claims survives motion to dismiss because of genuine issue of material fact as to whether police sargent had rendered victim more vulnerable to danger though his actions in preventing her mother from seeking physical custody of her. Sheets v. Mullins, 109 F.Supp.2d 879 (S.D. Ohio 2000).

Keywords: enforce, liability, duty to enforce, officer, enforcement

Date: 8/23/2002


Failure To Protect

A Connecticut woman successfully sued a city and its police officers for failing to protect her. Thurman v. Torrington, 505 F.Supp. 1521 (D. Conn. 1992).

Keywords: enforce, liability, duty to enforce, officer, enforcement

Date: 8/23/2002


No Civil Rights Action Against Police

The Sixth Circuit Court of Appeals ruled that U.S. Constitution does not impose an affirmative duty upon law enforcement departments to provide a minimum level of protection to a citizen, even where sheriff s department was aware that a deputy had threatened to kill his wife and children, and department's policies allowed drunken off-duty deputies to carry firearms and drive undercover vehicles. Court found significance that only one of guns the deputy used to shoot his wife and children was issued by the sheriffs department and that he had means of transport available other than department vehicle. The victims' family's failure to establish a constitutional duty of sheriff's department to protect victims of spousal abuse prevented recovery under 42 U.S.C. 1983. Garrett v. Gilless (CA6, 1/17/95, unpublished), review denied, U.S. Supreme Ct No. 94-1752, 6/19/95, 21 FLR 1388.

Keywords: enforce, liability, duty to enforce, officer, enforcement

Date: 8/23/2002


Ohio State Patrol Exempt

Because troopers of the State Highway Patrol are not peace officers described in R.C. 2935.03(B)(1), the troopers are not subject to the domestic violence arrest provisions of R.C. 2935.03(B)(3) and the Patrol is not required to adopt a domestic violence policy pursuant to R.C. 2935.032. 1996 Ohio Op. Atty. Gen. No. 96-014.

Keywords:

Date: 8/23/2002


Police Failure To Take Action Causes Police To Be Liable

Police failure to take action when decedent took all necessary steps to put police department on notice of her husbands violation of a plenary order of protection could cause police to be liable; Illinois Domestic Violence Act imposes affirmative duty on police to investigate and respond to complaints. Sneed v. Howell, 716 N.E.2d 336 (Ill. App. 1999).

Keywords: enforce, liability, duty to enforce, officer, enforcement

Date: 8/23/2002


Three-pronged Test For Section 1983 Liability On Equal Protection Grounds

Court used three-prong test to decide an equal protection claim based on law enforcement policies toward domestic assault and abuse victims; plaintiff must prove: (1) existence of policy of law enforcement to provide less protection to victims of domestic assault than to victims of other assaults; (2) discrimination against women was motivating factor; and (3) that the plaintiff was injured by the policy, custom, or practice. Shipp v. McMahon, 234 F.3d 907 (5th Cir. 2000).

Keywords: enforce, liability, duty to enforce, officer, enforcement

Date: 8/23/2002


Police Put On Notice By Restraining order

State law mandates restraining orders to be sent to police, giving them knowledge of the order, therefore police cannot claim immunity for failure to make an arrest where there is probable cause that order was violated. Further, the restraining order creates a "special relationship" between the police and the protected party. Campbell v. Campbell, 682 A.2d 272 (N.J. Super. Law Div. 1996).

Keywords: enforce, liability, duty to enforce, officer, enforcement

Date: 8/23/2002


Police Supervisors Fired For DV Response

Bliss Verdon called police when her former boyfriend, police officer Rodney Dilbert, left an abusive message on her answering machine. A police sergeant responded, said he talked to Dilbert "cop to cop" but filed no report. Dilbert later tried to force Verdon into a car and force his way into her workplace. Verdon called police again twice with no response. Several days later, Dilbert shot Verdon eight times with his service revolver, then killed himself. The police commissioner fired one of the supervisors involved in the case and forced another to retire. New York Times, 11/1/98.

Keywords:

Date: 8/23/2002


When Victim Contacts Defendant

Sheriff's office refused to enforce a restraining order barring defendant from the victim's residence because the defendant alleged that the victim had allowed the defendant to return. Despite evidence that the defendant had beaten the victim again, the officers threatened to arrest the victim rather than the defendant, and to take the victim's children away. The court rejected sheriff's department's argument that it had discretion to decide whether to enforce restraining orders, saying that the duty to enforce court orders is mandatory, not discretionary. Whether victim invited or allowed defendant to return was irrelevant to enforcement. Soto v. Sacramento Sheriff's Dep't, No. 332-313 (Sacramento Super Ct 1985). This holding was codified in Cal Pen Code 1371 0(b), which states protection orders remain enforceable notwithstanding the parties' acts, and can be changed only by order of court. A challenge to that law was rejected in People v. Gams (1997), 52 Cal.4th 147, 60 Cal.Rptr.2d 423.

Keywords: enforce, liability, duty to enforce, officer, enforcement

Date: 8/23/2002


Police officers Liable For Delaying Entrance Into Victims Home

Court found that police officers violated deceased victims civil rights when they delayed their entrance into the victims home although aware that victim was being abused by husband; city and officers liable for pain and suffering of family. Didzerekis v. Stewart, 41 F. Supp 2d 840(1999).

Keywords: enforce, liability, duty to enforce, officer, enforcement

Date: 8/23/2002


Domestic Violence Protection order Requires Protection

Illinois' domestic violence act raises the holder of a domestic violence protection order to a status above that of a member of the general public, and creates a special duty of protection from law enforcement agencies. Citing two New York cases that recognize a "special duty" owed to persons under a court order of protection, an Illinois court ruled that this special duty creates a cause of action for a woman against a sheriff and the county she works for. The woman notified the sheriff repeatedly that her estranged husband was harassing her by phone at her place of employment, that he was armed, and that he was alone at the home with her daughter. He was not arrested. The man then abducted the woman from work and later shot himself at a police roadblock. Although Illinois law limits law enforcement liability for negligence in domestic violence cases, the woman could proceed with her claims against the police department alleging that an officer's willful, wanton conduct or omission was proximate cause of her injuries. Calloway v. Kinkelaar, 659 N.E.2d 1322 (111. 1995).

Keywords: enforce, liability, duty to enforce, officer, enforcement

Date: 8/23/2002


Municipal Intent To Discriminate Not Found

Police officers' failure to arrest abusive husband who repeatedly violated civil protection orders could not reasonably be found to be "cause" of husband's subsequent killing of mother-in-law and rate of wife, for purpose of holding municipality liable under 42 U.S.C. 1983, according to the Eighth Circuit Court of Appeals, absent evidence of intent to discriminate against women for alleged practice of providing less protection to victims of domestic abuse than other victims of abuse. Ricketts v. Columbia, 36 F.3d 775 (CA 8, 1994), review denied, U.S. Supreme Ct No 94-1489, 5/1/95 21 FLR 1304.

Keywords: enforce, liability, duty to enforce, officer, enforcement

Date: 8/23/2002


Deputy Suspended For Failing To Report DV

An Illinois appellate court found discharge was too severe, but upheld a demotion and 216-day suspension for a deputy who failed to file a required domestic violence report involving a county correctional officer. Michael Huff v. Rock Island County Sheriffs Merit Commission, et al., Nos. 3-97-0172 & -0207 (111. App. 3rd Dist 1/9/98).

Keywords: enforce, liability, duty to enforce, officer, enforcement

Date: 8/23/2002


Police Suit Settled

In out-of-court settlement of a case brought by 12 battered women, the New York City Police Department agreed to intervene more effectively in domestic violence situations. Sorichetti v. City of New York, 482 N.E.2d 70 (1985); Bruno v. Codd, 396 N.Y.S.2d 974 (N.Y. Super Ct. 1977), aff'd 393 N.E.2d 976 (1979).

Keywords: enforce, liability, duty to enforce, officer, enforcement

Date: 8/23/2002


Suspensions Pending DV Determinations

The City of Baltimore suspended 35 police officers who were patrolling city streets while awaiting disciplinary hearings on charges of misconduct, including beating their wives and girlfriends and using excessive force. The action came in the wake of the shooting of a crime suspect by police officer Charles M. Smothers II. The shooting resulted in a multimillion-dollar lawsuit and settlement. During the suit, it was revealed that Smothers had been convicted of battery for a domestic violence incident during which he fired his gun at his ex-girlfriend and her new boyfriend. The Baltimore Sun, 1/27/99.

Keywords: enforce, liability, duty to enforce, officer, enforcement

Date: 8/23/2002


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