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January 1991
DOMESTIC VIOLENCE:
WHEN DO POLICE HAVE A CONSTITUTIONAL DUTY TO PROTECT?
By
Daniel L. Schofield, S.J.D.
Special Agent
Chief, Legal Instruction Unit
FBI Academy
Domestic violence is a serious crime problem that presents
law enforcement officers with difficult and dangerous
challenges. Victims of domestic violence sometimes file
lawsuits claiming that the failure of police to make an arrest
violated their right to police protection. Officers responding
to a domestic assault call must decide whether an arrest is
legally justified and whether an arrest is the most effective
police action to prevent further domestic violence. Some police
departments allow for officer discretion to diffuse domestic
disturbances and preserve the family unit by not making an
arrest. Other departments may limit officer discretion with a
policy that mandates arrest if there is probable cause to
believe a crime has been committed during a domestic
disturbance. The debate over how to use limited police
resources to best protect citizens against domestic violence
often includes a discussion of whether police have a legal duty
to offer a certain level of protection.
This article discusses the extent to which police have a
Federal constitutional duty to protect citizens against domestic
violence and the circumstances under which police can be held
liable under 42 U.S.C. Section 1983 (hereinafter Section 1983)
for a breach of that duty. Specifically, the article discusses
Section 1983 claims against the police based on an alleged
violation of: (1) Substantive due process, (2) equal protection
of the law, and (3) procedural due process. The potential for
liability based on these three Federal constitutional claims is
discussed in the context of recent court decisions involving
suits against the police. It should be noted that this article
does not address whether police have a legal duty to protect
under State law, which depends on the various laws of each
State. (1)
SUBSTANTIVE DUE PROCESS CLAIMS
The 14th amendment's Due Process Clause provides that "[n]o
state shall...deprive any person of life, liberty, or property,
without due process of law." (2) Claims against the police for
a violation of substantive due process have historically alleged
that a "special relationship" between police and a victim of
domestic violence created a constitutional duty to protect that
person from physical harm. However, the Supreme Court recently
narrowed the circumstances giving rise to such "special
relationships" and concluded that the Due Process Clause does
not legally obligate law enforcement to protect an individual
absent a custodial relationship.
GENERAL RULE--NO CONSTITUTIONAL DUTY TO PROTECT
In DeShaney v. Winnebago County Department of Social
Services, (3) a boy, who was beaten and permanently injured by his
father, claimed a due process violation because local officials
knew he was being abused but did not act to remove him from his
father's custody. The Supreme Court concluded that the State
had no constitutional duty to protect the boy because the Due
Process Clause is a limitation on the State's power to act, not
a guarantee of certain minimal levels of safety and security.
Further, according to the Court, the Due Process Clause confers
no affirmative right to governmental aid, even where such aid
may be necessary to protect an individual against private
violence. (4) In doing so, the Court rejected the argument that
a duty to protect arose because of a "special relationship" that
existed, because the State knew the boy faced a special danger
of abuse and specifically proclaimed by word and deed its
intention to protect him against that danger. (5)
The Court concluded that the Constitution imposes
affirmative duties of care and protection only to particular
individuals, such as incarcerated prisoners and involuntarily
committed mental patients who are restrained against their will
and rendered unable to care for themselves. (6) "The
affirmative duty to protect arises not from the State's
knowledge of the individual's predicament or from its
expressions of intent to help him, but from the limitation which
it has imposed on his freedom to act on his own behalf." (7)
The Court also noted that while the State may have been aware of
the dangers the boy faced, it played no part in their creation,
nor did it do anything to render him any more vulnerable to
them. And, even though the State once took custody of the boy
and then returned him to his father's custody, it placed him in
no worse position than he would have been in had the State not
acted at all. (8)
Courts interpreting DeShaney have rejected claims that
police have a substantive due process duty to protect
individuals against domestic violence. For example, in
Balistreri v. Pacifica Police Department, (9) the U. S. Court
of Appeals for the Ninth Circuit rejected a claim by a woman who
was allegedly beaten and harassed by her estranged husband.
Despite allegations that the police knew of her plight and
affirmatively committed to protect her when it issued her a
restraining order, the court concluded that DeShaney limited the
circumstances giving rise to a "special relationship" to
instances of custody, and that no such relationship existed in
this case imposing a due process duty on the police to protect
the victim from her husband. (10)
WHERE POLICE ACTION INCREASES DANGER
While DeShaney establishes the general rule that police
have no Federal due process duty to protect citizens from
private domestic violence, a constitutional duty to protect can
arise where law enforcement action actually increases an
individual's danger of, or vulnerability to, domestic violence
beyond the level it would have been absent the police action.
(11) For example, in Freeman v. Ferguson, (12) the U. S. Court
of Appeals for the Eighth Circuit concluded that DeShaney
establishes the possibility that police could be held liable for
failure to protect an individual against private domestic
violence if police conduct actually interfered with the
protective services that would have otherwise been available in
the community.
Freeman involved a Section 1983 action against the police
chief and city for the death of a woman and her daughter at the
hands of the woman's estranged husband. The plaintiff alleged
that the police chief failed to perform his duties by reason of
a close personal relationship with the estranged husband and
that he interfered with the conduct of other officers by
directing them not to enforce a restraining order.
The court found the allegation in Freeman distinguishable
from DeShaney because it constituted a claim that the violence
the decedents were subjected to was not solely the result of
private action, but rather resulted from an affirmative act by
the police chief to interfere with the protective services that
would have otherwise been available in the community. The court
acknowledged that it is not clear under DeShaney how large a
role the police must play in the creation of danger before
police assume a corresponding constitutional duty to protect,
but "...that at some point such actions do create such a duty."
(13) Courts have also suggested that police can be held liable
for escorting or removing domestic violence victims to locations
that actually increase their vulnerability to danger. (14)
EQUAL PROTECTION CLAIMS
The Supreme Court in DeShaney stated in a footnote that a
State may not selectively deny its protective services to
certain disfavored minorities without violating the Equal
Protection Clause. (15) However, an earlier Federal district
court decision in Thurman v. City of Torrington (16) is
generally considered the seminal case spawning litigation
against the police under the Equal Protection Clause.
In Thurman, a woman and her son were allegedly threatened
and assaulted numerous times by the woman's estranged husband in
violation of his probation and a restraining order, despite
numerous requests to the police department that they protect her
and arrest her estranged husband. It was also alleged that the
police department used an administrative classification that
resulted in police protection being fully provided to persons
abused by someone with whom the victim has no domestic
relationship, but less protection when the victim is either:
(1) A woman abused or assaulted by a spouse or boyfriend, or (2)
a child abused by a father or stepfather.
The Thurman court concluded that police are under an
affirmative duty to preserve law and order and to protect the
personal safety of persons in the community. The court further
noted that police who have notice of the possibility of attacks
on women in domestic relationships are under a duty to take
reasonable measures to protect them; failure to perform this
duty would constitute a denial of equal protection. (17)
It is important to note that the precedential value of
Thurman has been substantially undermined by the holding in
DeShaney that the government has no constitutional duty to
protect citizens against private domestic violence. In
addition, more recent Federal court decisions hold that
extensive evidence of intentional discrimination based on gender
is required to prove an equal protection claim. These cases
demonstrate the difficult burdens of proof that plaintiffs must
meet in order to sustain an equal protection claim against the
police for a failure to protect a victim of domestic violence.
POLICE DISCRETION IN ARREST DECISIONS
As a matter of constitutional law, police have considerable
discretion in deciding whether and when to make an arrest. In
McKee v. City of Rockwall, Texas, (18) the U. S. Court of Appeals
for the Fifth Circuit interpreted DeShaney as endorsing the
general principle that choices about the extent of governmental
obligation to protect private parties from one another have been
left to the democratic political process. It also held that
there is no constitutional violation when the most that can be
said of the police is that they stood by and did nothing when
suspicious circumstances dictated a more active role. (19)
In McKee, a woman claimed she was injured as a result of
the refusal of police officers to make an arrest after a
domestic assault call and that this non-arrest was the result of
a city policy that discriminated on the basis of gender in
violation of the Equal Protection Clause. Evidence of this
policy consisted of: (1) An alleged statement by the chief of
police that his officers did not like to make arrests in
domestic assault cases because the women involved either
wouldn't file charges or would drop them prior to trial, and (2)
statistics that purported to show a lower percentage of arrests
in domestic violence calls than in non-domestic assault calls.
The McKee court ruled that the proffered evidence did not
constitute an equal protection violation and that DeShaney
should not be circumvented by converting every due process claim
into an equal protection claim via an allegation that police
officers exercised their discretion to act in one incident but
not in another. (20) The court pointed out that police officers
are not authorized to arrest absent probable cause, and that
under DeShaney, officers who could have arrested the suspect in
this case are not under any constitutional duty to do so. (21)
The court held that DeShaney leaves officers and law enforcement
agencies with discretionary authority regarding arrest
decisions, and that officers need not fear that in any close
case, they must choose between liability for a potential false
arrest and liability for a potentially actionable non-arrest.
(22)
PROVING DISCRIMINATORY INTENT
Is an equal protection violation established by proof that
the failure of police to protect a victim of domestic violence
resulted from a police department policy or practice of treating
domestic assaults differently from non-domestic assaults and
that women were disproportionately disadvantaged? The answer is
"No." Courts have ruled that a police department's facially
neutral policy of treating domestic assaults differently than
non-domestic assaults only violates the Equal Protection Clause
if it is proven that the policy disproportionately disadvantages
women and that it was adopted with an intent to discriminate
against women. The cases discussed below illustrate the
significant evidentiary difficulties plaintiffs face in trying
to prove discriminatory intent.
For example, the court in McKee ruled that the plaintiff
failed to prove that an alleged police department policy of
discouraging arrests in domestic violence cases constituted
discrimination against women in violation of the Equal
Protection Clause. The court found the proffered evidence that
some officers dislike making arrests in domestic cases to be
different from a policy that is binding on all officers
regardless of their sentiments. In addition, the court noted
that the plaintiff's statistical comparison between domestic and
non-domestic assault arrests was exaggerated by an error and
failed to correct for the wide variety of factors that might
influence the likelihood that police would make an arrest.
These factors include: (1) Whether the assault was in progress
when police arrived, (2) whether a gun or knife had been used,
(3) whether the victim had suffered obvious physical injuries
and required medical attention, and (4) whether the victim
refused to press charges when the police arrived. (23)
The plaintiff's statistics also failed to prove
gender-based discrimination, since they did not indicate how
many of the victims in the cleared assault cases were women or
how many of the victims in the domestic violence cases were men.
The McKee court concluded that the plaintiff was attempting to
generalize a single incident of police department inaction in
one case into a general policy or practice. To permit such an
argument would eviscerate the discretion reserved to police
officers by DeShaney. (24)
In Hynson v. City of Chester Legal Department, (25) it was
alleged that police officers engaged in a practice of failing to
respond to complaints made by females against males known to
them and that they specifically failed to consider the complaint
of a woman who was killed by her former boyfriend as seriously
as they would consider the complaint of a female against an
unknown assailant. The U. S. Court of Appeals for the Third
Circuit held that to sustain an equal protection claim, "...a
plaintiff must proffer sufficient evidence that would allow a
reasonable jury to infer that it is the policy of the police to
provide less protection to victims of domestic violence than to
other victims of violence, that discrimination against women was
a motivating factor, and that the plaintiff was injured by the
policy or custom." (26) The court said merely showing that
categories used by the police in administering the law are
domestic violence and nondomestic violence is not sufficient
evidence of gender-based discrimination, absent a showing of an
intent to discriminate against women. (27)
PROCEDURAL DUE PROCESS CLAIMS
Do victims of domestic violence ever have a
constitutionally based right to police protection based on a
"property interest" created by a State statute or a protective
order? (28) In Coffman v. Wilson Police Department, (29) a
spousal abuse victim claimed that her right to due process was
violated because the police department never arrested or
restrained her husband, despite the existence of a protective
order and a contempt finding for violation of the protective
order and her numerous reports to the police department of
violations of this order. A Federal district court concluded
that the State's Protection From Abuse Act did not create an
enforceable property interest in police protection, but that a
court order in the form of a protective order issued pursuant to
that act stating that the appropriate police department shall
enforce the order does create a constitutionally enforceable
property right to police protection. (30) The court said
"...the right is not to immediate and unthinking obedience to
every request for assistance. Rather, it is the right to
reasonable police response." (31) The court conceded that there
is a great deal of discretion in police work and that the
failure to dispatch a vehicle in response to a domestic violence
call because other calls had greater importance would not
necessarily constitute a violation of due process. (32)
Despite the holding in this one district court decision in
Coffman, procedural due process claims against police for their
failure to protect victims of domestic violence are likely to
fail for the following three reasons. First, other courts
appear reluctant to adopt the rationale of the Coffman court
that a State law and protective order creates a constitutionally
recognized "property interest" to police protection. (33)
Second, a police officer's negligent deprivation of a "property
interest" to police protection would clearly not support a
procedural due process claim, and it is not even clear whether
an allegation of gross negligence or recklessness would suffice
or whether intentional conduct must be proved. (34) Third, the
Supreme Court in a 1990 decision in Zinermon v. Burch (35)
appears to have precluded Section 1983 liability for a police
agency if an officer's random and unauthorized intentional
conduct in not enforcing a protective order is subject to a
postdeprivation remedy in the form of a State tort action. (36)
CONCLUSION
The cases discussed in this article suggest that as a
general rule, police do not have a constitutionally imposed duty
to protect citizens against domestic violence. While
exceptional circumstances may create such a duty and give rise
to potential liability under Section 1983, lawsuits against the
police for a failure to protect may have a greater likelihood of
success in State court under a State-created duty to protect.
Therefore, law enforcement administrators must decide how to
most effectively allocate limited police resources to protect
all the citizens in their communities.
Any potential exposure to liability under Federal or State
law for an alleged failure to protect can be reduced if law
enforcement organizations take the following three initiatives.
First, law enforcement agencies should promulgate a written
policy regarding the handling of domestic assault calls that
includes a clear statement of department policy setting forth
the extent of officer discretion in making arrest decisions.
Second, police departments should document the training officers
receive in handling domestic violence situations and ensure that
officers also understand what resources are available in the
community to assist victims of domestic violence. Third, any
statistical disparity in arrest rates that may exist between
domestic and non-domestic assaults should be carefully evaluated
to ensure that such disparity is not caused by any officer bias
or animus toward female victims of domestic violence and that
the disparity can be explained in terms of legitimate law
enforcement interests.
FOOTNOTES
(1) See, "Does the Legal System Batter Women? Vindicating
Battered Women's Constitutional Rights to Adequate Police
Protection," 21 Ariz. St. L. J. 705, at 711 n. 64 (1989).
(2) U.S. Const. amend. XIV, Section 1.
(3) 109 S.Ct. 998 (1989).
(4) Id. at 1003.
(5) Id. at 1004.
(6) Id. at 1005.
(7) Id. at 1006.
(8) Id.
(9) 901 F.2d 696 (9th Cir. 1990).
(10) Id. at 700. In Bryson v. City of Edmond, 905 F.2d
1386 (10th Cir. 1990), the court held that the fact police
surrounded a post office where there was a hostage situation and
did not attempt to enter the building for more than 1-1/2 hours
did not create a special situation in which affirmative duties
of protection arose. A contrary rule would impose
constitutional duties on the police whenever they respond to
reports of violence and assemble at the scene contrary to the
holding in DeShaney.
(11) In Horton v. Flenory. 889 F.2d 454 (3d Cir. 1989), the
court concluded that the holding in DeShaney is limited to
situations in which the State is not involved in the harm, either
as a custodian or as an actor.
(12) 911 F.2d 52 (8th Cir. 1990).
(13) Id. at 55.
(14) See, e.g., Dudosh v. City of Allentown, 722 F.Supp. 1233
(E.D. Pa. 1989).
(15) 109 S.Ct. at 1004, n. 3.
(16) 595 F.Supp. 1521 (D. Conn. 1984).
(17) Id. at 1527.
(18) 877 F.2d 409 (5th Cir. 1989), cert. denied, 110 S.Ct. 727
(1990).
(19) Id. at 413.
(20) Id.
(21) Id. at 414.
(22) Id.
(23) Id. at 415.
(24) Id. at 416.
(25) 864 F.2d 1026 (3d Cir. 1988).
(26) Id. at 1031.
(27) Id. See also, Watson v. City of Kansas City, Kansas,
857 F.2d 690 (10th Cir. 1988); and Howell v. City of Catoosa,
729 F.Supp. 1308 (N.D. Okla. 1990).
(28) For a general discussion, see, "Actionable Inaction:
Section 1983 Liability for Failure to Act," 53 U. Chi. L. Rev.
1048 (1986).
(29) 739 F.Supp. 257 (E.D. Pa. 1990).
(30) Id. at 264.
(31) Id. at 265.
(32) Id. at 266.
(33) See, e.g., Doe by Nelson v. Milwaukee County, 903 F.2d
499 (7th Cir. 1990); and Hynson v. City of Chester, 731 F.Supp.
1236 (E.D. Pa. 1990).
(34) Daniels v. Williams, 106 S.Ct. 662 at 666, n.3 (1986).
(35) 110 S.Ct. 975 (1990).
(36) Id. at 984.
_______________
Law enforcement officers of other than Federal jurisdiction
who are interested in this article should consult their legal
adviser. Some police procedures ruled permissible under Federal
constitutional law are of questionable legality under State law
or are not permitted at all.