Caitlin E. Borgmann, "Battered Women's Substantive Due Process Claims: Can Orders of Protection Deflect DeShaney?" 65 N.Y.U.L. Rev. 1280 (1990).
[Numbers in brackets refer to original page numbers.]
[*1280]
INTRODUCTION
Jeffrey Tremins had beaten and threatened his wife Joanne for over three years
when, in 1986, he grabbed the family cat and strangled it in
front of Joanne and her children. n1 Having failed to arrest Jeffrey for reported
violence against his wife on several previous occasions, the
police finally arrested him on a charge of cruelty to animals. When her husband
was released on bond, Joanne sought and was issued an order
of protection n2 forbidding Jeffrey from coming near her. Four days later, [*1281]
Jeffrey approached Joanne at a local cafe and began to
harass her. A police officer was summoned and shown Joanne's order of protection,
but the officer nonetheless refused to arrest Jeffrey. Jeffrey
proceeded to punch his wife in the face and to smash her against a wall, fracturing
her nose and inflicting lacerations and contusions on her
face and arm. n3
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n1 Battered Women, Reluctant Police, Wash. Post, Feb. 28, 1988, at A1 [hereinafter Reluctant Police].
n2 Id. This Note considers only cases in which battered women have obtained
orders of protection and; wherever referring to "battered
women's cases," assumes that such an order has been obtained. An order
of protection (sometimes referred to as a temporary restraining order
or a temporary injunction) is "an injunction designed to prevent violence
by one member of a household against another." Lerman & Livingston,
State Legislation on Domestic Violence, 6 Response 1, 2 (1983). Orders of protection
have become a widely available judicial remedy for
battered women. With the exception of Idaho, New Mexico, and Virginia, every
state and the District of Columbia provides orders of protection
as a remedy for domestic abuse. See Brown, Battered Women and the Temporary
Restraining Order, 10 Women's Rts. L. Rep. 261, 261 n.3
(1988); Comment, Starting a TRO Project: Student Representation of Battered
Women, 96 Yale L.J. 1985, 1992 (1987).
Under the laws of most jurisdictions, a "temporary" order of protection
may be issued by a court to a battered woman, pursuant to a petition,
following an ex parte hearing before a judge. See Lerman, A Model State Act:
Remedies for Domestic Abuse, 21 Harv. J. on Legis. 61, 79, 92-93
(1984); Lerman & Livingston, supra, at 2. A temporary order provides for
emergency injunctive relief relating to the immediate safety of the
victim and possibly her children. See Lerman, supra, at 114-15. It may order
the batterer to keep a certain distance between himself and the
victim, to stay away from certain places frequented by the victim, or simply
to "stop abusing" the victim. It may also evict the batterer from
the
family home. See id. at 106; Comment, supra, at 1993-94. A temporary order may
be made "permanent" after a sufficient showing of abuse,
usually by a preponderance of the evidence, is made at an adversarial hearing.
See Lerman & Livingston, supra, at 2; Comment, supra, at 1993.
Besides protection, this permanent order may address other issues, such as support
and compensation for the woman, child custody and
visitation rights, counseling, and disposition of personal property. See Lerman,
supra, at 114-15; Lerman & Livingston, supra, at 2.
An order of protection usually authorizes the police to arrest the batterer
upon a report of a violation by the victim. See Lerman, supra, at 122.
Some states have instituted mandatory arrest policies that require the police
to arrest the batterer upon knowledge of domestic abuse, whether
or not the victim requests an arrest. See id. at 122-23. A violation of a temporary
or permanent order of protection by the batterer may result
in a finding of contempt of court or a criminal offense, depending on the jurisdiction
and, in some jurisdictions, upon the nature of the violation.
See id. at 117. For comparative surveys of state domestic violence legislation,
see R. Cherow-O'Leary, The State-by-State Guide to Women's
Legal Rights 103-502 (1987); Finn, Statutory Authority in the Use and Enforcement
of Civil Protection Orders Against Domestic Abuse, 23 Fam.
L.Q. 43, 60-73 (1989); Lerman & Livingston, supra, at 6.
n3 Reluctant Police, supra note 1, at A1. Abuse such as that inflicted upon
Joanne Tremins by her husband is alarmingly common in our society.
Its roots extend back to times in which a limited amount of wife-beating was
a husband's prerogative; the phrase "rule of thumb," for example,
derives from the historical common law right of the husband to beat his wife
with a switch, provided it was "no thicker than his thumb." Gee,
Ensuring Police Protection for Battered Women: The Scott v. Hart Suit, 8 Signs:
J. Women Culture & Soc'y 554, 555 (1983) (citing California
Comm'n on the Status of Women, Domestic Violence Fact Sheet (Sacramento, Calif.
1978)); Martin, The Historical Roots of Domestic Violence,
in Domestic Violence on Trial 3, 6 (D. Sonkin ed. 1987). For an account of the
history of domestic violence, see Martin, supra.
Violence by men against women remains widespread today and cuts across race,
class, and social or economic backgrounds, occurring as often
between members of the upper-middle class as among those of the lower class.
See Gee, supra, at 554-55. One-third of all female murder
victims in 1988 were slain by husbands or boyfriends. Uniform Crime Reports,
Fed. Bureau of Investigation, Crime in the United States 13 (1988).
In the period from 1973-1981, 91% of all spousal violent crimes were victimizations
of women by their husbands or exhusbands. Bureau of
Justice Statistics, U.S. Dep't of Justice, Special Report: Family Violence 4
(1984). Even these statistics are severly understated, however: only
one-third of all crime is reported to the police, and domestic violence is particularly
underreported and difficult to document. See id. at 2.
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Joanne Tremins sued the police department in federal court for its failure
to protect her. n4 Her case was settled without resolving the legal
issues; n5 but in several recent cases, federal courts have considered claims
by battered women n6 alleging that the failure of police to enforce
their protective orders violated their substantive due process rights under
42 U.S.C. § 1983. n7 These cases illustrate a growing trend in the
federal courts: increasing numbers of battered women are seeking damage awards
under section 1983 for violations of their constitutional rights
by their local governments for failing to provide them with adequate police
protection after a court has issued an order of protection against the
[*1282] batterer. n8
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n4 Reluctant Police, supra note 1, at A1; Telephone Interview with Burton
Weinstein, attorney for Joanne Tremins, of Weinstein, Weiner &
Shapiro, Bridgeport, Conn.(Feb. 1, 1990).
n5 Telephone Interview with Burton Weinstein, supra note 4.
n6 As used in this Note, "battered women" refers to women who are
subjected to repeated physical or psychological abuse by a male, usually a
husband, common law husband, or boyfriend.
n7 See, e.g., Balistreri v. Pacifica Police Dep't, 855 F.2d 1421, 1428 (9th
Cir. 1988), amended, 901 F.2d 696 (9th Cir. 1990); Dudosh v. City of
Allentown, 629 F. Supp. 849, 857 (E.D. Pa. 1985). For a discussion of §
1983 claims, see text accompanying notes 22-41 infra.
n8 See, e.g., Hynson v. City of Chester, 864 F.2d 1026, 1030 (3d Cir. 1988)
(equal protection claim); Balistreri, 855 F.2d at 1423 (substantive
due process and equal protection claims); Dudosh, 629 F. Supp. at 851 (same);
Thurman v. City of Torrington, 595 F. Supp. 1521, 1524-25 (D.
Conn. 1984) (equal protection claim).
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At least one case sends a negative message to women bringing such claims,
however. Although the Ninth Circuit originally issued an opinion in
Balistreri v. Pacifica Police Department n9 upholding a battered woman's due
process and equal protection claims against the police, n10 the
court later amended its opinion, dismissing the due process claim n11 in light
of the Supreme Court's ruling in DeShaney v. Winnebago County
Department of Social Services. n12 In that case, a father had beaten his son,
Joshua DeShaney, so severely that the boy was rendered
permanently and profoundly brain-damaged. n13 Joshua's mother sued the local
government, alleging that its social workers' failure to protect
the boy, despite their awareness of the great danger Joshua faced at home, violated
Joshua's fourteenth amendment due process rights. n14
The Court found in favor of the defendants, n15 reasoning that, except in limited
circumstances, n16 states have no affirmative duty under the
due process clause of the fourteenth amendment n17 to protect citizens from
inflictions of private harm, even where the state has knowledge
of an individual's danger and expresses an intent to provide protection to that
person. n18
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n9 855 F.2d 1421 (9th Cir. 1988), amended, 901 F.2d 696 (9th Cir. 1990).
n10 See id. at 1426.
n11 See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 700 (9th Cir. 1990).
The court continued to uphold the equal protection claim. See id.
at 700-02.
n12 109 S. Ct. 998 (1989); see text accompanying notes 91-121 infra. The majority
opinion in DeShaney was written by Chief Justice Rehnquist
and was joined by Justices White, Stevens, O'Connor, Scalia, and Kennedy. Justice
Brennan filed a dissenting opinion, joined by Justices
Marshall and Blackmun. Justice Blackmun also filed a separate dissenting opinion.
n13 DeShaney, 109 S. Ct. at 1002.
n14 Id.
n15 See id. at 1006.
n16 See text accompanying notes 115-17, 122-31, 137-53 infra.
n17 The due process clause of the fourteenth amendment guarantees that "[n]o
State shall . . . deprive any person of life, liberty, or property,
without due process of law." U.S. Const. amend. XIV, § 1.
n18 See DeShaney, 109 S. Ct. at 1004-05.
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On its face, DeShaney appears to call into question the continuing validity
of a line of cases that has expanded the scope of claims under
section 1983, n19 including claims of battered women like Joanne Tremins, [*1283]
who are harmed as a result of the state's n20 failure to
enforce their orders of protection. n21 This Note argues, however, that despite
DeShaney's apparently sweeping restrictions, battered women's
substantive due process claims based upon a state's failure to enforce their
orders of protection still constitute valid causes of action under
section 1983; as amended, Balistreri was therefore wrongly decided.
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n19 See, e.g., Youngberg v. Romeo, 457 U.S. 307, 324 (1982) (finding that
involuntarily committed mental patients may assert substantive due
process rights under § 1983 as to obtain safe conditions of confinement,
freedom from bodily restraint, and training or "habilitation"); Estelle
v.
Gamble, 429 U.S. 97, 107-08 (1976) (recognizing § 1983 claims by prisoners
alleging failure of state to provide adequate medical care); Doe v.
New York City Dep't of Social Servs., 649 F.2d 134, 149 (2d Cir. 1981) (upholding
§ 1983 claim by foster children for state failure to protect
against abusive foster father); White v. Rochford, 592 F.2d 381, 382, 386 (7th
Cir. 1979) (recognizing § 1983 claims by children for failure of
police to provide assistance, when police left children on roadside after arresting
their uncle for drag racing); cf. Martinez v. California, 444 U.S.
277, 285 (explicitly leaving open possibility of claims for state failure to
protect against violent acts of parolees where state knew victim was
endangered).
n20 As used in this Note, the term "state" refers generally to state and local government entities and their agents.
n21 See cases cited in notes 50, 52 infra. Battered women with protective
orders who have received inadequate police protection may bring
suit under a variety of legal theories. They may proceed under state tort law,
see notes 43-45 and accompanying text infra; they may bring
claims under § 1983 for violations of the constitutional right to equal
protection, see notes 50-53 and accompanying text infra; and they may
bring procedural due process claims under § 1983, see generally Jones,
Battered Spouses' Section 1983 Damage Actions Against the
Unresponsive Police, 93 W. Va. L. Rev. -- (1991) (forthcoming) (discussing procedural
due process claims for battered women after DeShaney).
The petitioners in DeShaney made a claim under this last theory, but the Court
declined to address it. See DeShaney, 109 S. Ct. at 1003 n.2.
While the right to procedural due process guarantees only that "appropriate
procedural safeguards" are complied with before a battered woman
is denied protection, in contrast, a battered woman proceeding under a substantive
due process theory asserts that the state is "categorically
obligated to protect" her. Id. at 1003. An additional theory on which battered
women may proceed, in light of the Supreme Court's
post-DeShaney ruling in City of Canton v. Harris, 109 S. Ct. 1197 (1989), is
that the state failed to train the police adequately for domestic
violence response. See generally Jones, supra (discussing battered women's failure-to-train
claims after DeShaney).
This Note focuses on substantive due process claims brought under § 1983
by battered women, since it is the validity of these claims that is
put into doubt by DeShaney. See text accompanying notes 88-90, 175-79 infra.
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Part I of this Note describes the elements of a section 1983 claim and the
theories of liability employed by courts prior to DeShaney. It then
discusses the importance and development of section 1983 substantive due process
claims by battered women. Part II outlines the majority
opinion in DeShaney and discusses its application in subsequent substantive
due process cases. Part III provides a framework for analyzing
future substantive due process claims by battered women and for distinguishing
those claims from DeShaney. Part IV offers the final thought
that, whatever the effect of DeShaney on battered women's claims, there is a
need for close examination of the existence of battered women's
substantive due process rights to police protection.
[*1284] I
BATTERED WOMEN'S SUBSTANTIVE DUE PROCESS CLAIMS UNDER 42 U.S.C. SECTION 1983
A. Elements of a Section 1983 Action
Section 1983 n22 was enacted in 1871 to create a private, civil cause of action
for those whose constitutional rights are violated by someone
acting as an officer of the state (a "state actor"). n23 To sustain
a section 1983 action, a battered woman must show, first, that the conduct
complained of was committed by a person acting "under color of" state
law and, second, that this conduct deprived her of a federal
constitutional right. n24
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n22 Section 1983 provides, in pertinent part, that
[e]very person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State . . . subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983 (1988) (emphasis added).
n23 H.R. Rep. No. 548, 96th Cong., 1st Sess. 1, reprinted in 1979 U.S. Code
Cong. & Admin. News 2609. Section 1983, originally referred to as
the Ku Klux Klan Act of 1871, was enacted to provide federal control over state
and territorial officials reluctant to enforce state law against
persons who violated the rights of newly freed slaves. Id.
n24 See Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds,
Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Baker v.
McCollan, 443 U.S. 137, 140 (1979); Balistreri v. Pacifica Police Dep't, 855
F.2d 1421, 1424 (9th Cir. 1988), amended, 901 F.2d 696 (9th Cir.
1990).
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The Supreme Court has defined action under color of state law to be a "[use]
of power, possessed by virtue of state law and made possible
only because the [actor] is clothed with the authority of state law." n25
Thus, a police officer acts under color of state law when her action or
inaction n26 relates in some way to the performance of police duties. n27 For
example, a police officer is a state actor for purposes of section
1983 when she attacks a citizen without provocation during a routine stop, n28
assaults a detainee, n29 or exhibits deliberate indifference to a
prisoner's serious illness or injury. n30
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n25 United States v. Classic, 313 U.S. 299, 326 (1941).
n26 See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).
n27 See Screws v. United States, 325 U.S. 91, 111 (1945). A police officer
is not automatically liable under § 1983 simply because she was on
duty when the alleged incident occurred. See Johnson v. Hackett, 284 F. Supp.
933, 937 (E.D. Pa. 1968) (name-calling by police officer "purely
personal" act not "in any way related to the performance of police
duties" and therefore not "under color of [state] law"); see
also Screws, 325
U.S. at 111 ("[A]cts of officers in the ambit of their personal pursuits
are plainly excluded.").
n28 See Brandon v. Holt, 469 U.S. 464, 466 n.2 (1984).
n29 See Screws, 325 U.S. at 107.
n30 See Estelle, 429 U.S. at 104-05.
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Where a private actor, as opposed to a state actor, has caused the injury
to a section 1983 claimant, such as a battered woman, the claimant
[*1285] can still satisfy the state action element by showing that the state
had and breached an affirmative duty to protect her from the
private actor. n31 In such cases it is the state's failure to act -- its failure
to protect the claimant from the private harm -- that forms the
basis of its liability. The Supreme Court, however, has held that the due process
clause was not intended to require the state to protect its
citizens against private inflictions of harm, n32 but rather to prevent the
use of governmental power as a tool for oppression. n33 Thus, a
state's failure to act can be deemed to violate a constitutional right only
in cases where the state has an affirmative duty to act and fails to
fulfill this duty. n34
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n31 See DeShaney, 109 S. Ct. at 1004-05; Youngberg v. Romeo, 457 U.S. 307, 317 (1982).
n32 See Martinez v. California, 444 U.S. 277, 284-85 (1980).
n33 See Davidson v. Cannon, 474 U.S. 344, 348-49 (1986); Daniels v. Williams, 474 U.S. 327, 331-33 (1986).
n34 Federal courts often have found that such an affirmative duty may exist
where the state has created or assumed a "special relationship"
with respect to a particular individual. See, e.g., Estate of Bailey v. County
of York, 768 F.2d 503, 510-11 (3d Cir. 1985) (possible special
relationship between child and county child-welfare agencies); Jensen v. Conrad,
747 F.2d 185, 195 (4th Cir. 1984) (under appropriate
circumstances, special relationship between department of social services and
family may exist), cert. denied, 470 U.S. 1052 (1985). Special
relationship doctrine, which derives from tort law concepts, recognizes a state
duty to act and thus constitutes an exception to the traditional
rule that the government has no general duty to provide services. See Note,
Actionable Inaction: Section 1983 Liability for Failure to Act, 53 U.
Chi. L. Rev. 1048, 1051 (1986). The factors which indicate the existence of
a special relationship include, for example, the foreseeability of harm
to the claimant, the perpetrator's status vis-a-vis the state, the state's declared
intention to help the individual, and the individual's reliance
upon the state's assurances that it will help. Id.
Unfortunately, under current case law, the requirements for a special relationship
cannot be stated with greater precision. See id. at 1051-52
(summarizing various special relationship theories); see also Jackson v. City
of Joliet, 465 U.S. 1049, 1050-51 (1984) (White, J., dissenting)
(Court should attempt to resolve "perplexing issue" of "when
tortious conduct by state officials rises to the level of a constitutional tort").
Indeed, it was the DeShaney Court's intention to delineate more precisely the
circumstances in which the state has an affirmative duty to act
which led to the Court's narrow construction of substantive due process claims
in that case. See DeShaney, 109 S. Ct. at 1002; text
accompanying notes 88-90 infra.
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Once a plaintiff establishes that the state had an affirmative duty to protect
her from injury, she must still show that this duty was breached.
While a showing that the state intentionally violated its duty is not required,
n35 the plaintiff must allege more than mere negligence. n36 Thus,
a battered woman suing the police must allege that their failure to protect
her or to respond to her requests for help resulted from at least
deliberate [*1286] indifference, or possibly gross negligence. n37
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n35 See Balistreri v. Pacifica Police Dep't, 855 F.2d 1421, 1424 (9th Cir.
1988), amended, 901 F.2d 696 (9th Cir. 1990); see also Monroe v.
Pape, 365 U.S. 167, 182-83, 187 (1961) (concluding that claimants under §
1983 need not prove willful or specific intent and that § 1983 should
be "read against the background of tort liability that makes a man responsible
for the natural consequences of his actions"), overruled on other
grounds, Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 663 (1978).
n36 See Daniels, 474 U.S. at 330-32 (merely negligent conduct by state official not by itself sufficient to support § 1983 due process claim).
n37 See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (applying deliberate indifference
standard); Metzger v. Osbeck, 841 F.2d 518, 520 n.1 (3d
Cir. 1988) (applying gross negligence standard).
Theoretically, "gross negligence" describes a type of conduct, namely
extreme or "glaring" negligence, without implying a notion of intentionality.
See Doe v. New York City Dep't of Social Servs., 649 F.2d 124, 143 (2d Cir.
1981), cert. denied, 464 U.S. 864 (1983). "Deliberate indifference"
does include an element of intentionality but is still closely associated with
gross negligence in that gross negligence creates a strong
presumption of deliberate indifference. Id. But see Archie v. City of Racine,
847 F.2d 1211, 1219-20 (7th Cir. 1988) (gross negligence is not
deliberate indifference and is not sufficient to support constitutional violation;
preferred standard is recklessness, reflecting "complete
indifference to risk," as "proxy for intent"), cert. denied,
109 S. Ct. 1338 (1989).
While the Supreme Court has held that mere negligence or lack of due care
is insufficient to establish a breach of the state's affirmative duties,
see Daniels, 474 U.S. at 330-32, it has left open the question of whether higher
levels of less-than-intentional conduct, such as gross
negligence, are sufficient to support a § 1983 claim. See id. at 334 n.3.
At least one commentator has interpreted Daniels as implying a
standard which requires a showing of intentional misconduct. See Burnham, Separating
Constitutional and Common Law Torts: A Critique and a
Proposed Constitutional Theory of Duty, 73 Minn. L. Rev. 515, 524-27 (1989).
However, no court of appeals has held that intentional
misconduct alone will suffice to support an allegation of a constitutional violation.
See Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989).
One commentator has argued that the interposition of a state-of-mind or culpability
requirement in § 1983 actions is inconsistent with its
purpose and that the statute originally was implicitly identified as a strict
liability species of tort. See Mead, Evolution of the "Species of Tort
Liability" Created by 42 U.S.C. § 1983: Can Constitutional Tort Be
Saved from Extinction?, 55 Fordham L. Rev. 1, 4, 13 (1986).
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To satisfy the second element of a section 1983 claim, the claimant must show
that the conduct of the state actor deprived her of a federal
constitutional right. n38 In DeShaney, for example, the constitutional right
at issue was a substantive due process right under the fourteenth
amendment, n39 specifically, Joshua DeShaney's right to freedom from "'unjustified
intrusions on his personal security.'" n40 The same right of
personal security is at issue in section 1983 claims brought by battered women.
n41
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n38 Violations of state law do not by themselves constitute claims under §
1983. See Paul v. Davis, 424 U.S. 693, 700 (1976). Rather, the
violated right must be guaranteed by the federal Constitution. See Daniels,
474 U.S. at 335-36 (§ 1983 claim not valid where violation not of
constitutional magnitude); Martinez v. California, 444 U.S. 277, 284 (1980)
("the first inquiry in any § 1983 suit . . . is whether the plaintiff
has
been deprived of a right 'secured by the Constitution and laws'" of the
United States (quoting Baker v. McCollan, 443 U.S. 137, 140 (1979))).
n39 See note 17 supra. The due process clause encompasses both procedural
and substantive due process. See G. Gunther, Constitutional Law
502 (10th ed. 1980). Section 1983 protects against state infringement of all
rights arising under the fourteenth amendment of the Constitution,
including due process. See Monroe, 365 U.S. at 171.
n40 DeShaney, 109 S. Ct. at 1002-03 (quoting Ingraham v. Wright, 430 U.S.
651, 673 (1977)). Substantive due process, however,
encompasses even more than the right explicated by the Court in DeShaney, including
a number of other rights not explicitly enumerated in the
Constitution. See Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
n41 See Note, The Limits of the Neighborhood Justice Center: Why Domestic
Violence Cases Should Not Be Mediated, 34 Emory L.J. 855, 893-94
(1985). Battered women's constitutionally protected property interests in remaining
in their homes and providing a home for their children may
also be at stake. Id. at 894; see Gee, supra note 3, at 560 (women's rights
to liberty of life, security in their persons, homes, and property, and
freedom of personal privacy and autonomy in matters of family and child rearing
are at stake in due process actions brought by battered
women).
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[*1287] B. Importance of Substantive Due Process Claims for Battered Women
Only recently have battered women availed themselves of the Constitution in
alleging inadequate police protection. n42 Traditionally, battered
women have vindicated such violations by bringing tort actions in state courts,
suing for damages for police negligence in breaching the duty to
protect them against known dangers. n43 State tort theories, however, are not
as effective in redressing the problem as are federal
constitutional theories. A Constitution-based claim is available to women in
every state, unlike state tort actions, which vary with the vagaries
of the tort law of each individual state. n44 For example, many state tort regimes
which do provide rights of action for battered women also
have immunity provisions that insulate government officials against civil damages
claims, thus decreasing the chances that plaintiffs will be
compensated for their injuries. n45 Furthermore, section 1983 provides for recovery
of [*1288] attorney fees, thereby enhancing plaintiffs'
ability to seek relief. n46 And, faced with the threat of federal constitutional
claims, states may recognize the seriousness of their failure to
enforce orders of protection. n47 Moreover, section 1983 provides claimants
with an additional cause of action and source from which to
recover damages. n48 Potential liability for damages under section 1983, particularly
in those states which themselves provide inadequate
remedies or no remedies at all, will motivate states to provide better police
protection to women with orders of protection, if for monetary
reasons alone. n49
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n42 See Hynson v. City of Chester, 864 F.2d 1026, 1030 (3d Cir. 1988) (referring
to recent "trend" of use of § 1983 by battered women to bring
constitutional claims against police).
n43 See, e.g., Sorichetti v. City of New York, 65 N.Y.2d 461, 468-69, 482
N.E.2d 70, 75, 492 N.Y.S.2d 591, 596 (1985) (police may be found
liable in tort for failure to enforce order of protection); Baker v. City of
New York, 25 A.D.2d 770, 772, 269 N.Y.S.2d 515, 518 (1966) (state may
be found liable in tort for not enforcing order of protection); Bruno v. Codd,
90 Misc. 2d 1047, 1050-51, 396 N.Y.S.2d 974, 977 (Sup. Ct. 1977)
(allowing tort claims by battered wives against police department for failure
to provide adequate protection), rev'd on other grounds, 64 A.D.2d
582, 407 N.Y.S.2d 165 (1978), aff'd, 47 N.Y.2d 582, 393 N.E.2d 976, 419 N.Y.S.2d
901 (1979); Nearing v. Weaver, 295 Or. 702, 708-09, 670
P.2d 137, 141 (1983) (police officers who knowingly fail to enforce orders of
protection may be liable in tort for harm to mother and children);
Kubitscheck v. Winnett, No. 8587 (Or. Cir. Ct. filed 1980) (pleadings available
from Nat'l Clearinghouse for Legal Servs.) (tort claim against
sheriff deputies for failing to arrest plaintiff's husband upon his violation
of her order of protection). For a discussion of battered women's state
tort actions, see Note, The Case for Legal Remedies for Abused Women, 6 N.Y.U.
Rev. L. & Soc. Change 135, 157-58 (1977) [hereinafter Note,
Legal Remedies]; Note, Sorichetti v. City of New York Tells the Police that
Liability Looms for Failure to Respond to Domestic Violence
Situations, 40 U. Miami L. Rev. 333, 346-50, 353-58 (1985) [hereinafter Note,
Liability Looms].
n44 See Blackmun, Section 1983 and Federal Protection of Individual Rights
-- Will the Statute Remain Alive or Fade Away?, 60 N.Y.U. L. Rev. 1,
28 (1985) ("[N]one of us can guarantee that the day will not return when
a litigant who cannot vindicate his constitutional rights in federal
court will not be able to vindicate them at all."); Note, Legal Remedies,
supra note 43, at 157-58 (state tort remedies for battered women
limited in availability).
n45 See Aynes, Constitutional Considerations: Government Responsibility and
the Right Not to Be a Victim, 11 Pepperdine L. Rev. 63, 86 & n.113
(1984); Note, Liability Looms, supra note 43, at 353-54. Immunity may also exist
in § 1983 actions, but in a more limited capacity. The
standards for absolute immunity under § 1983 are stringent and probably
would not apply to police in battered women's situations. See Harlow
v. Fitzgerald, 457 U.S. 800, 807 (1982). To receive qualified immunity, "government
officials performing discretionary functions [must show that]
their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." Id. at 818.
Moreover, a municipality may not be immune from liability even where an individual
official qualifies for immunity under § 1983. See, e.g., Owen
v. City of Independence, 445 U.S. 622, 638 (1980). For a discussion of immunity
in § 1983 cases, see Note, Defining the Scope of the Due
Process Right to Protection: The Fourth Circuit Considers Child Abuse and Good
Faith Immunity, 70 Cornell L. Rev. 940, 959-65 (1985).
n46 42 U.S.C. § 1988 (1988) provides that "[i]n any action or proceeding
to enforce a provision of section [] . . . 1983 . . . of this title . . . the
court, in its discretion, may allow the prevailing party, other than the United
States, a reasonable attorney's fee as part of the costs."
n47 Absent state recognition of the obligation to ensure enforcement of orders
of protection, the orders are largely ineffective. See Brown,
supra note 2, at 265 ("In order to be effective, restraining orders must
have as much bite as they do bark."); Finn, supra note 2, at 45 ("The
most serious limitation of civil protection orders is widespread lack of enforcement.");
Note, Legal Remedies, supra note 43, at 156 ("The value
of a protective order is . . . reduced by enforcement procedures which are neither
effective nor exercised."); Hernandez, Uniformity Sought in
Abuse Cases, Boston Globe, June 6, 1989, at 19 (" 'A restraining order
is a piece of pink paper, period. Unless it's properly enforced, it doesn't
mean much.'" (quoting Joan Stiles, Coalition of Battered Women Service
Groups of Mass.)).
n48 See Monroe v. Pape, 365 U.S. 167, 183 (1961) ("The federal remedy
is supplementary to the state remedy, and the latter need not be first
sought and refused before the federal one is invoked."), overruled on other
grounds, Monell v. New York City Dep't of Social Servs., 436 U.S.
658, 663 (1978). Thus, a claimant who would receive inadequate recovery through
the remedies available in her state may sue under § 1983
without first exhausting existing state remedies.
Section 1983 claims also have the advantage of providing the plaintiff access
to federal court, where her chances of receiving damages are
greater than in state court. Federal courts are seen as more likely to enforce
constitutional rights vigorously. See Neuborne, The Myth of Parity,
90 Harv. L. Rev. 1105, 1118-28 (1977); see also Whitman, Constitutional Torts,
79 Mich. L. Rev. 5, 22-24 (1980) (emphasizing importance of
federal right at issue in § 1983 cases and appropriateness of federal courts
as places to redress such rights).
n49 See Note, Battered Women and the Equal Protection Clause: Will the Constitution
Help Them When the Police Won't?, 95 Yale L.J. 788, 806
n.75 (1986).
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Battered women have brought section 1983 claims for violations either of equal
protection or substantive due process rights. A battered woman
claiming a violation of her right to equal protection alleges that a police
policy of non-arrest in domestic violence cases is a discriminatory
allocation of police protection, in violation of the fourteenth amendment, n50
which ensures "any person within [a state's] jurisdiction the
[*1289] equal protection of the laws." n51 In battered women's substantive
due process claims, on the other hand, the constitutional violation
inheres in the state's failure to act where it had a duty to act, not in the
discriminatory nature of its actions or inactions; n52 the touchstone is
the implied constitutional right of specific individuals to the protection of
the state. n53
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n50 See id. at 789 & n.5; see, e.g., Hynson v. City of Chester, 864 F.2d
1026, 1029-30 (3d Cir. 1988); Watson v. City of Kansas City, 857 F.2d
690, 694 (10th Cir. 1988); Bartalone v. County of Berrien, 643 F. Supp. 574,
576 (W.D. Mich. 1986); Thurman v. City of Torrington, 595 F.
Supp. 1521, 1526-27 (D. Conn. 1984); Scott v. Hart, No. 76-2395 (N.D. Cal. filed
Nov. 1976) (pleadings available from Nat'l Clearinghouse for
Legal Servs.); see generally Note, supra note 49, at 793-804 (discussing method
for proving equal protection violation against battered women
based on sex-based classifications and discriminatory intent).
n51 U.S. Const. amend. XIV, § 1.
n52 See, e.g., Balistreri v. Pacifica Police Dep't, 855 F.2d 1421, 1425 (9th
Cir. 1988), amended, 901 F.2d 696 (9th Cir. 1990); Gilmore v.
Buckley, 787 F.2d 714, 715 (1st Cir.), cert. denied, 479 U.S. 882 (1986); Turner
v. City of N. Charlestown, 675 F. Supp. 314, 319 (D.S.C.
1987); Dudosh v. City of Allentown, 629 F. Supp. 849, 851 (E.D. Pa. 1985).
n53 Cf. Daniels v. Williams, 474 U.S. 327, 331 (1986) (due process protects
individuals from arbitrary government action).
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Substantive due process claims are, in principle, easier for battered women
to prove than equal protection claims. Whereas the showing that a
substantive right exists is usually dispositive in substantive due process cases,
n54 a successful equal protection claim requires proof not only
of discriminatory impact on battered women as a class, but also of several intent-based
elements. n55 While an equal protection claim will fail
where a court finds that the state denied police protection to persons in a
non-discriminatory manner, a substantive due process claim will
succeed for each claimant who proves a violation in her case, regardless of
how the state has treated other individuals. n56 However, even in
these "easier" [*1290] suits, battered women first must overcome the
hurdle of convincing the courts that their constitutional right to
personal safety implies a right to affirmative state protection. n57 This effort
may be especially arduous because battered women must show
that the state violated this right by failing to act. n58 Thus, battered women
will be able to avail themselves of more easily proven substantive
due process claims only after courts recognize that a battered woman with an
order of protection has a substantive right under the Constitution
to have that order enforced.
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n54 In substantive due process cases, the most difficult element to establish
is the existence of a particular substantive right; once the right is
recognized, however, proving that it has been violated generally is not difficult,
since a law which infringes on such a right "may be justified only
by a 'compelling state interest' . . . [and] must be narrowly drawn to express
only the legitimate state interests at stake." Roe v. Wade, 410
U.S. 113, 155 (1973) (citations omitted) (striking down Texas statute which
criminalized abortion as violation of right to privacy); see also
Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (striking down Connecticut
statute that prohibited use of contraceptives as violation of
right to privacy); NAACP v. Alabama, 357 U.S. 449, 462-66 (1958) (striking down
Alabama order requiring production of records and membership
lists as violation of freedom of association).
n55 Although the constitutional right to equal protection, in contrast to
the right to substantive due process, is expressly provided for in the
Constitution, see text accompanying note 51 supra, a § 1983 equal protection
claim in the battered women context requires proof of several
elements in addition to proof that a facially neutral state policy has a discriminatory
impact on women as a class. See Hynson v. City of
Chester, 864 F.2d 1026, 1027 (3d Cir. 1988). These elements are: (1) that a
reasonable police officer would know that the policy has a
discriminatory impact on women; (2) that bias against women was a motivating
factor behind the adoption of the policy; and (3) that no
important public interest is served by the adoption of the policy. Id.; see
also Gee, supra note 3, at 559 ("Showing discriminatory intent is an
uphill battle."); Woods, Litigation on Behalf of Battered Women, 5 Women's
Rts. L. Rep. 7, 18-20 (1978) (discussing difficult proof requirements
for battered women's equal protection claims). For a discussion of battered
women's equal protection claims, see Note, supra note 49, at
793-804.
n56 See Daniels, 474 U.S. at 331 (" 'The touchstone of due process is
protection of the individual against arbitrary action of government.'"
(emphasis added) (quoting Dent v. West Virginia, 129 U.S. 114, 123 (1889))).
n57 See text accompanying notes 31-34 supra.
n58 See Note, supra note 34, at 1049-50.
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C. Battered Women's Due Process Claims Prior to DeShaney
Prior to the Supreme Court's decision in DeShaney, courts deciding battered
women's section 1983 substantive due process claims looked to
whether a "special relationship," necessary to create an affirmative
duty on the part of the state, existed between the state and the battered
woman. n59 These analyses yielded confusing results. Two federal courts upheld
battered women's substantive due process claims, finding that
the existence of an order of protection, together with certain other state contacts,
could give rise to a special relationship between the woman
and the state. Two other federal courts denied battered women's substantive
due process claims, one of them finding that no special
relationship existed despite the woman's order of protection.
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n59 See note 34 supra (discussing special relationship doctrine).
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In its original (pre-DeShaney) opinion in Balistreri v. Pacifica Police Department,
n60 the Ninth Circuit upheld a section 1983 claim by a battered
woman who had obtained an order of protection enjoining her former husband from
"harassing, annoying or having any contact with her." n61
Despite this order, Balistreri's estranged husband continued to harass her for
several years and, on one occasion, threw a firebomb through the
window of her house. n62 She consistently reported these incidents to the police,
who either failed entirely to respond to the reports or
responded slowly. n63
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n60 855 F.2d 1421 (9th Cir. 1988), amended, 901 F.2d 696 (9th Cir. 1990).
n61 Id. at 1423.
n62 Id.
n63 Id.
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In her complaint, Balistreri alleged that the police department's actions
and failures to act had deprived her of her right to due process of law.
n64 The district court, on defendants' motion, dismissed Balistreri's complaint
with prejudice, finding that Balistreri had failed to show that a
[*1291] special relationship might have existed between her and the state. n65
The Ninth Circuit Court of Appeals reversed and reinstated the
claim, holding that a jury could find that the state had a constitutional duty
to protect Balistreri. n66
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n64 Id. Balistreri's complaint also alleged that the state's failure to respond
to complaints lodged by women in domestic violence cases violated
the equal protection clause. Id.
n65 See Balistreri v. Pacifica Police Dep't, 656 F. Supp. 423, 425 (N.D. Cal.
1987), rev'd, 855 F.2d 1421 (9th Cir. 1988), amended, 901 F.2d 696
(9th Cir. 1990).
n66 See Balistreri, 855 F.2d at 1426. The same court later reversed this holding
in light of DeShaney. See Balistreri v. Pacifica Police Dep't, 901
F.2d 696, 700 (9th Cir. 1990). For a criticism of the court's application of
DeShaney in this context, see text accompanying notes 122-24,
176-85 infra.
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While the court agreed that the state's awareness of a victim's plight will
not by itself create a special relationship, it nonetheless decided for
the plaintiff. The court found that, in this case, the state's awareness that
Balistreri was in danger, coupled with the possibility that the state
had committed itself affirmatively to protect her by granting an order of protection,
could satisfy the requirements for a special relationship. n67
The factors it considered in determining whether a special relationship could
exist included: (1) whether the state had assumed a custodial
relationship with the victim; (2) whether the state was aware of a specific
risk of harm to the victim; (3) whether the state affirmatively placed
the victim in danger; and (4) whether the state affirmatively committed itself
to protecting the victim. n68
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n67 See Balistreri, 855 F.2d at 1426.
n68 See id. at 1425.
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Similarly, in Dudosh v. City of Allentown, n69 the District Court for the
Eastern District of Pennsylvania allowed a due process claim brought by
the administrator of the estate of a battered woman who was murdered by her
former boyfriend. n70 An order of protection, which had been
issued against the boyfriend, required the police to remove him if the woman
reported that he had violated the order. n71 The woman had made
repeated reports to the police of her boyfriend's continued threats and harassment,
including one report shortly before her death. n72 The court
found that the existence of the order, in conjunction with the woman's contacts
with the police, "placed an affirmative duty upon the police
department [*1292] to protect the deceased." n73
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n69 629 F. Supp. 849 (E.D. Pa. 1985).
n70 See id. at 855. The court denied the defendants' motion to dismiss; however,
in a later opinion, it granted the defendants' motion for
summary judgment as to the plaintiff's due process claim, finding that the plaintiff
had failed to prove the necessary elements of a special
relationship. See Dudosh v. City of Allentown, 665 F. Supp. 381, 391 (E.D. Pa.
1987). The court subsequently denied the plaintiff's motion to
reconsider her due process claim in light of DeShaney, stating that the "DeShaney
standard" for a valid substantive due process claim was not
met. Dudosh v. City of Allentown, 722 F. Supp. 1233, 1235 (E.D. Pa. 1989). For
a criticism of the court's application of DeShaney, see text
accompanying notes 122-24 infra.
n71 Dudosh, 629 F. Supp. at 855.
n72 Id.
n73 Id. It appears that, in addition to the protective order, the court required
evidence that the police knew of the abuse to establish the
special relationship. However, it is arguable that this second factor ought
not to have been necessary to establish the police's duty to act
because it concerns the second element of a due process claim, namely, whether
the police violated their duty. See Jensen v. Conrad, 747 F.2d
185, 195 n.11 (4th Cir. 1984) ("Whether the State knew of the claimants'
plight . . . goes more to the breach of the 'special relationship' than a
definition of the relationship."), cert. denied, 470 U.S. 1052 (1986).
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Prior to DeShaney, at least one court of appeals and one district court looked
with disfavor upon due process claims by battered women. In
Estate of Gilmore v. Buckley, n74 in which a battered woman had been kidnapped
and murdered by her estranged boyfriend, n75 the First
Circuit affirmed the district court's dismissal of the substantive due process
claim brought by the deceased woman's estate, finding that the
state's knowledge that the woman was in danger did not create a special relationship
of constitutional dimensions. n76 Because the court
seems not to have considered whether the woman had obtained an order of protection,
n77 however, the precedential and analytical relevance
of this case, in light of this Note's argument, is limited. The court simply
based its decision on the grounds that, as a general matter, where the
state neither plays a part in creating the danger to the victim nor takes her
into its custody, it has no special relationship with the victim. n78
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n74 787 F.2d 714 (1st Cir.), cert. denied, 479 U.S. 882 (1986).
n75 Id. at 717-18.
n76 Id. at 721-22.
n77 Although an order of protection had in fact been issued, plaintiffs did
not consider its existence vital to their arguments, and neither court
referred to the order in refusing to find a special relationship. Telephone
Interview with Kiernan B. Meagher, attorney for plaintiffs, of Robert J.
Owens Assocs., P.C., Boston, Mass. (Nov. 2, 1990).
n78 See Gilmore, 787 F.2d at 722.
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In Turner v. City of North Charlestown, n79 a South Carolina district court
also rejected a claim by a battered woman who alleged deprivation
of her substantive due process rights under section 1983. n80 In Turner, the
woman had obtained an order of protection and had notified the
police several times that her estranged husband was threatening her in violation
of the order. n81 The husband later shot her in the head
several times. n82 Nevertheless, the court found that there was no special relationship
between the state and the victim to trigger an
affirmative duty on the part of the state to protect her. n83 Reasoning that
"the [South Carolina domestic violence statute n84] is addressed to
follow-up procedures rather [*1293] than to any affirmative duty to protect
a person prior to a domestic abuse incident," n85 the court found
that police officials had no affirmative duty under the statute to protect the
claimant. n86 In relying solely on the state statute to reach its
holding, however, the court failed to address the question of whether an order
of protection in and of itself gives rise to a special relationship.
n87
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n79 675 F. Supp. 314 (D.S.C. 1987).
n80 See id. at 316.
n81 Id. at 317-18.
n82 Id. at 318.
n83 See id. at 319.
n84 The South Carolina statute, the Protection from Domestic Abuse Act, S.C.
Code Ann. § 20-4-10 to -130 (Law. Co-op. 1976), provides, in
pertinent part:
In [domestic abuse] incidents, the law enforcement officer must [n]otify the
abused person of the right to initiate criminal proceedings and to
seek an order of protection under this chapter [and must a]dvise the parties
of the importance of preserving evidence. [T]he officer may offer
or arrange to provide transportation of the abused person to a hospital . .
. 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 . . . personal property.
. . .
Id. § 20-4-100.
n85 Turner, 675 F. Supp. at 319.
n86 See id.
n87 See id. at 318-20 (discussing statute as grounds for holding that no affirmative
state duty existed).
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The disparate results in these four cases demonstrate the lack of uniformity
among the federal courts as to when an order of protection may
trigger a state duty to protect a battered woman. Initially, the Supreme Court's
opinion in DeShaney seemed to hold promise for clearing up the
confusion manifested in these battered women's cases. Indeed, the Court explained
that it had granted certiorari "[b]ecause of the inconsistent
approaches taken by the lower courts in determining when, if ever, the failure
of a state or local governmental entity or its agents to provide an
individual with adequate protective services constitutes a violation of the
individual's due process rights." n88 However, the DeShaney Court
effectively annihilated the old special relationship test n89 and found that
Joshua DeShaney had no substantive due process claim, leading some
courts to believe that battered women with orders of protection no longer may
claim violations of their substantive due process rights. n90 This
Note shows that, indeed, DeShaney does not close the door on battered women;
the DeShaney holding, contrary to the conclusions of some
courts, still leaves room for their substantive due process claims.
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n88 DeShaney, 109 S. Ct. at 1002.
n89 See note 34 supra; text accompanying notes 67-68 supra; note 146 infra.
n90 See, e.g., Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 700 (9th
Cir. 1990); Hynson v. City of Chester, 731 F. Supp. 1236, 1238-39 (E.D.
Pa. 1990); Dudosh v. City of Allentown, 722 F. Supp. 1233, 1234-35 (E.D. Pa.
1989).
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[*1294] II
DESHANEY V. WINNEBAGO COUNTY DEPARTMENT OF SOCIAL SERVICES
A. The Case
In 1984, Joshua DeShaney, a four-year-old boy, was beaten so brutally by his
father that he was left permanently brain-damaged and
profoundly retarded. n91 These beatings did not go unnoticed by the Winnebago
County Department of Social Services (DSS or Department).
From 1982, when DSS first learned that Joshua might be a victim of child abuse,
n92 until the final beating in 1984, it maintained various forms
of contact with Joshua and his father. In 1983, for example, the Department
placed Joshua in the temporary custody of a local hospital to
which he had been admitted for treatment of injuries indicating possible child
abuse. n93 An ad hoc team of various community workers then
met to consider Joshua's situation. n94 The team recommended several measures
to protect Joshua, and Joshua's father entered into a
voluntary, informal agreement with the Department whereby he promised to cooperate
in these measures. n95 Upon the recommendation of the
ad hoc team, the juvenile court dismissed the case and subsequently returned
Joshua to his father's custody. n96 For the next fourteen
months, Joshua's caseworker made periodic visits to the DeShaney home, but,
although she recorded suspicious injuries she observed on
Joshua, the Department took no action. n97 It was during this period of observation
that Joshua's father inflicted the final, near-fatal blows.
n98
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n91 DeShaney, 109 S. Ct. at 1001-02.
n92 Id. at 1001.
n93 Id.
n94 Id.
n95 Id.; DeShaney v. Winnebago County Dep't of Social Servs., 812 F.2d 298, 300 (7th Cir. 1987), aff'd, 109 S. Ct. 998 (1989).
n96 DeShaney, 109 S. Ct. at 1001.
n97 Id.
n98 Id. at 1001-02.
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Joshua and his mother brought a section 1983 substantive due process action
against the Winnebago County government, DSS, and various
individual DSS employees. n99 Their complaint alleged that the government and
its agents had deprived Joshua of his due process rights by
failing to protect him against his father's violence, of which they knew or
should have known. n100 Plaintiffs contended that there was a special
relationship between Joshua and the state which imposed an affirmative obligation
[*1295] on the state to protect him. n101 They argued
that this relationship arose out of the state's knowledge of the ongoing abuse
to Joshua and out of its specific declarations of intent to protect
him against that abuse. n102 The district court disagreed and granted the state's
motion for summary judgment. n103
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n99 Id. at 1002.
n100 Id.
n101 Id. at 1004.
n102 Id.
n103 DeShaney, 812 F.2d at 299.
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The plaintiffs appealed, and the Seventh Circuit affirmed, n104 holding that
Joshua had not made out an actionable claim under section 1983.
n105 The Seventh Circuit found that the due process clause does not require
a state to protect its citizens from private violence and that the
state's mere knowledge of danger does not trigger a special relationship between
the victim and the state. n106 The court also found that the
causal connection between the state's conduct and Joshua's injuries was too
attenuated to establish a deprivation of constitutional rights.
n107 It stated that "deprivation in the constitutional sense requires more
than a minimal or fictitious causal connection between the action of
the state and the injury of the plaintiff." n108
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n104 See id. at 304.
n105 See id. at 301.
n106 See id. at 301, 303-04.
n107 See id. at 302-03.
n108 Id. at 303.
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Although the Supreme Court recognized that Joshua's case was "undeniably
tragic," n109 it nonetheless upheld the Seventh Circuit decision,
finding that Joshua had no right to protection by the state. n110 The Court
began by classifying Joshua's abuse as "private violence," which
"the State played no part in creating." n111 The Court maintained
further that Joshua was made no worse off as a result of any action taken by
the state since he was already in a precarious situation prior to any state
involvement. n112 Finally, the Court stressed the state's passivity in
the case, stating that the most which could be said of the Department was that
it "stood by and did nothing when suspicious circumstances
dictated a more active role." n113
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n109 DeShaney, 109 S. Ct. at 1001.
n110 See id. at 1007.
n111 Id. at 1004.
n112 See id. at 1006.
n113 Id. at 1007. The Court reached this conclusion despite its own acknowledgement
that the Department had taken several affirmative steps.
For example, the Court discussed the "Child Protection Team" which
DSS convened on Joshua's behalf, the agreement it entered into with
Joshua's father, its temporary removal of Joshua from his home, the regular
visits and reports made by its caseworker assigned to Joshua's
case, and its ongoing contacts with Joshua over a two-year period. See id. at
1001-02; see also id. at 1008 (Brennan, J., dissenting) (stressing
action that state did take with respect to Joshua's case); id. at 1012 (Blackmun,
J., dissenting) (criticizing majority's attempt "to draw a sharp
and rigid line between action and inaction").
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[*1296] The DeShaney Court's conclusion that the state was not liable for
a violation of Joshua's substantive due process rights depended
upon the premise that the due process clause does not "guarantee [citizens]
certain minimal levels of safety and security." n114 The Court
wrote that the state incurs a constitutional duty to ensure the person's "safety
and general well-being" n115 only when it affirmatively restrains
an individual's freedom and thereby limits her ability to provide for herself.
Although the Court specifically cited incarceration and
institutionalization as examples of such affirmative restraints, n116 its definition
of "custody" included all "other . . . restraint[s] of personal
liberty" by the state which limit a person's freedom to act on her own
behalf. n117
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n114 Id. at 1003.
n115 Id. at 1005.
n116 See id. at 1006.
n117 Id.; see text accompanying notes 125-36 infra.
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The DeShaney Court conceded that the state had taken temporary custody of
Joshua at one point, but it refused to find liability on this ground,
lest the state unacceptably "become the permanent guarantor of an individual's
safety by having once offered him shelter." n118 The Court
emphasized that Joshua received the final blows while in his father's custody.
The state's responsibility, the Court found, was absolved once
Joshua was returned home. n119 The Court also raised the concern that imposing
liability upon the state in this case would place state child
welfare agencies on a "razor's edge," n120 where either intervention
or passivity could expose them to liability. n121
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n118 DeShaney, 109 S. Ct. at 1006 (emphasis added).
n119 See id. (reasoning that Joshua was no worse off than before state intervened and that state played no part in creating his predicament).
n120 The Seventh Circuit used the term "razor's edge" in its opinion
to refer to the dilemma facing state child welfare agencies: whereas
intervention might expose them to § 1983 claims by the parent, failure
to intervene might expose them to such claims by the child. See
DeShaney, 812 F.2d at 304. But cf. text accompanying notes 264-66 infra (discussing
absence of razor's edge problem in battered women's
cases).
n121 "[H]ad [the state] moved too soon to take custody [it] would likely
have been met with charges of improperly intruding into the
parent-child relationship, charges based on the same Due Process Clause that
forms the basis for the present charge of failure to provide
adequate protection." DeShaney, 109 S. Ct. at 1007. In discussing potential
intrusion by a state agency into family relationships, the Court
referred obliquely to a concern expressed more directly in the Seventh Circuit
opinion, namely the precarious nature of the duties of child
welfare agencies. See DeShaney, 812 F.2d at 304 ("[b]alancing the rights
of parents with those of their children is a task as difficult as it is
delicate").
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B. Articulating the Breadth of the State's Affirmative Duties After DeShaney
Although the Supreme Court in DeShaney used sweeping language [*1297] to articulate
its holding, that language should not be read to
preclude the substantive due process claims of battered women whose orders of
protection were not adequately enforced. Undoubtedly, many
courts will follow the lead of those in several recent cases and interpret DeShaney
to preclude these claims automatically. n122 However, such
an application of DeShaney in battered women's cases is too mechanical. The
DeShaney opinion gives state institutionalization and involuntary
incarceration as specific examples of state "custody" giving rise
to liability if the state then fails to protect the claimant; n123 but in focusing
solely on these two examples, a court would ignore two elaborations upon the
standard which appear in separate footnotes. n124 These
elaborations must be examined before a legitimate application of DeShaney to
battered women's cases is possible. While DeShaney does set the
standard for determining the validity of battered women's substantive due process
claims, the Court's language in articulating this standard is
broad and in need of clarification. This Note concludes that, properly interpreted,
the DeShaney standard for determining the existence of the
state's duty to protect an individual asks whether the state placed the individual
in danger.
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n122 See, e.g., Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 700 (9th
Cir. 1990); Hynson v. City of Chester, 731 F. Supp. 1236, 1238-39
(E.D. Pa. 1990); Dudosh v. City of Allentown, 722 F. Supp. 1233, 1235 (E.D.
Pa. 1989). But see text accompanying notes 175-83 infra
(criticizing Balistreri court's interpretation of DeShaney as overly narrow).
n123 See DeShaney, 109 S. Ct. at 1006.
n124 See id. at 1004 n.4, 1006 n.9.
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1. The Limits of the State's Duty in DeShaney: State Custody
The DeShaney opinion implicitly adopts the assumption that the state can incur
a constitutional duty to ensure a person's safety in certain
cases. This Note interprets such circumstances to include those in which the
state places a person in danger. n125 One situation in which this
condition may arise, suggested by the Court in DeShaney, is when the state holds
a person in custody. n126 As specific illustrations of state
custody, the DeShaney Court cited incarceration and institutionalization. n127
But the opinion explicitly suggested that the ambit of state
"custody," from which liability under section 1983 may spring, might
encompass more than those two conditions. The Court noted that, had the
state placed Joshua in a foster home operated by state agents, it might have
assumed [*1298] an affirmative obligation to protect him. n128
By suggesting that a foster home may constitute "state custody," the
Court indicated approval of a broader definition of custody than is
indicated by the use of the extreme examples of imprisonment and involuntary
institutionalization. n129 This definition is broader because it
focuses on the affirmative act of the state in depriving the individual of her
liberty rather than on the restrictiveness of her custody: n130 "Had
the State by the affirmative exercise of its power removed Joshua from free
society and placed him in a foster home operated by its agents,
we might have a situation sufficiently analogous to incarceration or institutionalization
to give rise to an affirmative duty to protect." n131
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n125 See text accompanying notes 137-53 infra.
n126 See DeShaney, 109 S. Ct. at 1005. State custody, however, is not the
only situation in which the state may place a person in danger. In
Martinez v. California, 444 U.S. 277 (1990), a case cited in DeShaney, the Supreme
Court implied that liability might be found where a state
violates a duty to protect a person from a parolee. See text accompanying notes
137-45 infra. Clearly, in such a case state custody of the
victim is not a factor.
n127 See DeShaney, 109 S. Ct. at 1006.
n128 See id. at 1006 n.9.
n129 The Court clearly did not intend its definition of custody to be limited
solely to imprisonment and institutionalization, since it stated: "[I]t
is
the State's affirmative act of restraining the individual's freedom to act on
his own behalf -- through incarceration, institutionalization, or other
similar restraint of personal liberty -- which is the 'deprivation of liberty'
triggering the protections of the Due Process Clause. . . ." Id. at 1006
(emphasis added).
n130 Cf. id. ("While the State may have been aware of the dangers that
Joshua faced in the free world, it played no part in their creation, nor
did it do anything to render him any more vulnerable to them." (emphasis
added)).
n131 Id. at 1006 n.9 (emphasis added) (citing Taylor ex rel. Walker v. Ledbetter,
818 F.2d 791, 794-97 (11th Cir. 1987), cert. denied, 109 S.
Ct. 1337 (1989) and Doe v. New York City Dep't of Social Servs., 649 F.2d 134,
141-42 (2d Cir. 1981), cert. denied, 464 U.S. 864 (1983)).
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At least two federal courts since DeShaney have been receptive to this more
expansive notion of custody. In B. H. v. Johnson, n132 an Illinois
district court held that a child who suffers injuries while in state foster
care has a valid section 1983 claim, "where the state is deliberately
indifferent to the likelihood that a foster home is unsafe, yet places a child
there or allows the child to remain there." n133 In Stoneking v.
Bradford Area School District, n134 the Third Circuit noted that DeShaney could
be applied to find custody in other contexts as well. The court
stated that, in the case before it, public high school students might not be
"dissimilar to . . . children in foster homes mistreated by their foster
parents." n135 The court thus suggested that state liability under section
1983 for a schoolgirl's sexual assault by a teacher might exist under
an expansive DeShaney-type custody analysis. n136
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n132 715 F. Supp. 1387 (N.D. Ill. 1989).
n133 Id. at 1396.
n134 882 F.2d 720 (3d Cir. 1989), cert. denied, 110 S. Ct. 840 (1990).
n135 Id. at 724.
n136 See id. at 723-24. The court, however, ultimately decided the case on
different grounds. See id. at 724.
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2. Further Articulation of the Standard for State Duty in DeShaney: State Causation
of Danger
The broadest reading of the Supreme Court's standard for state lia [*1299]
for failure to protect, as applied in DeShaney, finds liability where
the state affirmatively places a person in danger, regardless of whether the
individual is in state custody at the time of injury. This articulation
of the standard is directly supported by the DeShaney Court's discussion of
Martinez v. California, n137 a case which left open precisely this
potential ground for finding duty. n138 Indeed, the DeShaney Court indicated
that its decision left its previous ruling in Martinez undisturbed.
n139
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n137 444 U.S. 277 (1980).
n138 See id. at 285.
n139 See DeShaney, 109 S. Ct. at 1004 n.4.
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Martinez involved a section 1983 claim on behalf of a fifteen-year-old girl
who was murdered by a parolee. n140 The complaint alleged that the
state had violated the girl's constitutional right to protection in releasing
the parolee because the state officials knew or should have known
that the release of the parolee, who had a history of sex offenses, "created
a clear and present danger that such an incident would occur."
n141 The district court denied the claim and the Ninth Circuit Court of Appeals
affirmed. n142
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n140 Martinez, 444 U.S. at 279.
n141 Id. at 280.
n142 Id. at 279.
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The Supreme Court affirmed the Ninth Circuit decision. The Court found that
the parolee was not an agent of the parole board and that the
parole board was not aware that the decedent, as distinguished from the public
at large, faced any special danger. n143 It also emphasized
that the victim's murder had occurred five months after the state had released
the parolee. Therefore, the Court held, the decedent's death
was too remote a consequence of the parole officers' action in releasing the
parolee to hold the officers liable under section 1983. n144 The
Court added that it "need not and [would] not decide that a parole officer
could never be deemed to 'deprive' someone of life by action taken in
connection with the release of a prisoner on parole," but merely found
that, on the facts before it, the causal connection was not sufficiently
established. n145 Implicit in this finding is the assumption that, given causation,
state duty would exist in such a situation; otherwise, the issue
of "deprivation" would never arise. In so limiting its holding to
the specific facts before it, the Martinez Court implied that state liability
might
have been found if the victim's injury had been connected more closely to the
officials' action in releasing the parolee.
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n143 See id. at 285.
n144 See id.
n145 Id.
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The DeShaney Court did not overrule its decision in Martinez but instead distinguished
that decision from the question before it, stating
[*1300] that Martinez did not "squarely confront [ ] the question presented
here." n146 Thus, it appears that Deshaney may still allow section
1983 claims for violations of the substantive due process rights of battered
women where the state affirmatively places a battered woman with
an order of protection in danger analogous to that in a Martinez-parolee scenario.
Admittedly, the Court refused to find liability in Martinez, but
this was due to attenuated causation. n147 Where the causal connection is stronger
than that in Martinez, n148 a battered woman's suit might
well succeed.
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n146 DeShaney, 109 S. Ct. at 1004 n.4. Martinez had been interpreted by many
federal courts of appeals as implying that a special relationship
between an individual and the state exists where the state knows that the individual
faced danger from a particular person and specifically
announces its intention to protect her. See, e.g., Balistreri v. Pacifica Police
Dep't, 855 F.2d 1421, 1425-26 (9th Cir. 1988), amended, 901 F.2d
696 (9th Cir. 1990); Estate of Bailey v. County of York, 768 F.2d 503, 510-11
(3d Cir. 1985); Jensen v. Conrad, 747 F.2d 185, 190-94 (4th Cir.
1984), cert. denied, 470 U.S. 1052 (1985). The Court in DeShaney rejected this
interpretation of Martinez and thus found the appellants'
argument that the state knew of Joshua's plight and promised to protect him
insufficient to establish the existence of a special relationship
between him and the state. See DeShaney, 109 S. Ct. at 1004. In effect, this
amounted to a rejection of the old special relationship test, under
which these factors were sufficient to create state liability. See id.; note
34 supra (describing former special relationship doctrine).
n147 See Martinez, 444 U.S. at 285.
n148 The DeShaney Court found that, "[r]ather than squarely confronting
the question presented here," Martinez was decided on the "narrower
ground that the causal connection between the state officials' decision to release
the parolee from prison and the murder was too attenuated
to establish a 'deprivation' of constitutional rights." DeShaney, 109 S.
Ct. at 1004 n.4.
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Further support for the "placing into danger" articulation of the
DeShaney Court's standard is found in the Court's repeated reminders that the
state had played no part in the creation of Joshua's dangerous situation. n149
The Court asserted that, although the state stood by passively
while the harm was inflicted upon Joshua, n150 its inaction played no role in
creating the dangerous circumstance. n151 The Court concluded
that "[u]nder these circumstances, the State had no constitutional duty
to protect Joshua." n152 Thus, the Court implicitly adopted the
position that a constitutional duty to protect would have arisen if the state
had played an affirmative role in the creation of the danger and if
the causal link was stronger than that in Martinez. n153
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n149 See id. at 1006-07.
n150 See id. at 1007.
n151 See id. at 1006-07. The Court stated that Joshua's injuries did not occur
while he was in temporary state custody and that, when he was
returned to his home, he was placed in no worse a position than that in which
he would have been had the state not acted at all. See id. at
1006.
n152 Id. at 1006.
n153 It is important to note that the Court's references to incarceration
and institutionalization are linked factually to a line of cases in which
the Supreme Court has found an affirmative state duty to protect. See, e.g.,
Youngberg v. Romeo, 457 U.S. 307, 316 (1982) (claim of
involuntarily committed mental patient); Estelle v. Gamble, 429 U.S. 97, 104-05
(1976) (claim of prisoner). In arriving at its holding, the Court
underscored the factual distinctions between the DeShaney case and the Estelle-Youngberg
line of cases and made no further mention of the
reasoning applicable to a Martinez, released-parolee situation, in which incarceration
of the victim clearly is not a factor. See DeShaney, 109 S.
Ct. at 1006 ("The Estelle-Youngberg analysis simply has no applicability
in the present case."). Indeed, the Court based its conclusion solely on
the reasoning derived from the Estelle-Youngberg line. See id. at 1005-06 ("But
these cases [referring to Estelle-Youngberg line] afford
petitioners no help."). However, the Martinez decision remains good law,
and, since duty was impliedly found in that case (although causation
was not), see text accompanying notes 144-45 supra, the Court's emphasis on
imprisonment and institutionalization should not be read as
determinative of the question of state duty.
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[*1301] Several federal courts recently addressing section 1983 substantive
due process claims for state failure to act have attempted to
clarify the general language in DeShaney by turning to a Martinez-type analysis.
Based on such readings of DeShaney, these courts have
articulated the appropriate standard as one which finds a duty to protect where
the state affirmatively places an individual in danger.
In Cornelius v. Town of Highland Lake, n154 for example, the Eleventh Circuit
upheld a town clerk's section 1983 substantive due process claim
against a town and its prison officials for their failure to protect her from
the violence of work-squad inmates in the Alabama correctional
system. n155 In this case, a work-squad of inmates had been assigned by town
and prison officials to work in the community and around the
town hall. n156 While Harriet Cornelius was at work in the town hall, two inmates
abducted her at knife-point and held her hostage for three
days. n157 The district court granted the defendants' motion for summary judgment,
on the grounds that Cornelius was not owed a duty by the
defendants to be protected from the criminal acts of work-squad inmates. n158
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- -
n154 880 F.2d 348 (11th Cir. 1989), cert. denied, 110 S. Ct. 1784 (1990).
n155 See id. at 349.
n156 Id. at 349 & n.1.
n157 Id. at 350.
n158 Id. at 351.
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The Eleventh Circuit Court of Appeals reversed, holding that, since the town
and prison officials affirmatively had created a potentially
dangerous situation, and since Cornelius's position as town clerk placed her
in a position of danger distinct from that of the public at large, the
proper conditions for finding a duty of care by the state under the due process
clause existed. n159 The court distinguished DeShaney's finding
of insufficient state involvement in bringing about Joshua's injuries. n160
Whereas in DeShaney the Court found that the state had played no
part in the creation of Joshua's predicament, in Cornelius the Ninth Circuit
emphasized that "[i]n this case, the defendants did indeed create the
dangerous situation." n161 The court also distinguished Martinez, finding
that the causal connection on the facts before it was sufficiently tight
"to create a [*1302] triable issue." n162 Thus, the standard upon
which the Cornelius court relied was whether the defendants "affirmatively
placed [Cornelius] in that dangerous situation." n163
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n159 See id. at 357.
n160 See id. at 355-56.
n161 Id. at 356.
n162 Id. at 358.
n163 Id. at 359.
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Similarly, in Wood v. Ostrander, n164 the Ninth Circuit upheld a section 1983
claim by a rape victim against state patrol officers. n165 In Wood,
a state trooper, after stopping and arresting Wood's companion for driving while
intoxicated, called a tow truck to have the car impounded.
n166 The trooper then abandoned Wood at 2:30 a.m. in an area with one of the
highest aggravated crime rates in the county. n167 Wood
eventually accepted a ride with a stranger, who raped her. n168 The district
court granted the defendants' motion for summary judgment. n169
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n164 879 F.2d 583 (9th Cir. 1989), cert. denied, 59 U.S.L.W. 3325 (1990).
n165 See id. at 586.
n166 Id.
n167 Id.
n168 Id.
n169 Id.
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The Ninth Circuit Court of Appeals reversed, holding that, because the state
trooper had arrested the driver, impounded the car, and stranded
Wood in a high-crime neighborhood at 2:30 a.m., she was distinguishable from
the general public and therefore was owed an affirmative duty by
the police to protect her. n170 The court, while not referring explicitly to
Martinez, recognized that DeShaney "distinguish[ed] situation[s]
where [the] state 'played no part' in creating the dangers" faced by the
victim from those in which the state's action contributed to the danger.
n171 The Wood court thus articulated the applicable standard as whether the
state trooper's conduct "'affirmatively placed the plaintiff in a
position of danger.'" n172
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n170 See id. at 590.
n171 Id.
n172 Id. at 589-90 (quoting Ketchum v. County of Alameda, 811 F.2d 1243, 1247
(9th Cir. 1987)).
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In sum, the DeShaney opinion narrowed, but by no means extinguished, section
1983 claims for substantive due process violations. A state may
still be held liable if it affirmatively places a person in danger and, in failing
to protect her, causes or contributes to her harm. Moreover, the
state need not have nearly total control over the individual to "affirmatively
place" her in danger. DeShaney provides a battered woman with
two theories on which to establish a state's duty to protect her from her batterer:
she may show that she was in the "custody" of the
[*1303] state, broadly construed, n173 or that the state placed her, as distinct
from the general public, in danger. n174
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n173 See text accompanying notes 186-98 infra.
n174 See text accompanying notes 199-246 infra.
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III
BATTERED WOMEN'S SUBSTANTIVE DUE PROCESS CLAIMS AFTER DESHANEY
DeShaney threatens to limit the scope of the state's protective duties to
specific individuals by rejecting the traditional special relationship
standard formerly relied upon by courts to determine state liability. n175 Thus,
DeShaney could be read to limit battered women's claims against
police for failure to enforce their protective orders. n176 Indeed, this is
precisely how the Ninth Circuit read DeShaney in its amended opinion in
Balistreri. n177 The court, noting that DeShaney "limited the circumstances
giving rise to a 'special relationship,'" n178 concluded that "the
state's knowledge of DeShaney's plight and its expressions of intent to help
him were no greater than its knowledge of Balistreri's plight and its
expressions of intent to help her." n179
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n175 See DeShaney, 109 S. Ct. at 1004 & n.4 (citing cases and rejecting
arguments used therein). For a discussion of the former special
relationship doctrine, see note 34 supra.
n176 In fact, the Court cited Balistreri v. Pacifica Police Dep't, 855 F.2d
1421 (9th Cir. 1988), amended, 901 F.2d 696 (9th Cir. 1990), as a case
in which the court improperly relied on the old special relationship test. See
DeShaney, 109 S. Ct. at 1004 n.4; text accompanying notes 60-68
supra (discussing Balistreri).
n177 See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 700 (9th Cir.
1990). Other courts similarly have chosen to read DeShaney in this
restrictive way, finding no state duty to protect in situations which do not
involve incarceration or involuntary institutionalization. See, e.g.,
Piechowicz v. United States, 885 F.2d 1207, 1214 (4th Cir. 1989) (no state liability
under Federal Tort Claims Act for failure to protect federal
witness); Philadelphia Police & Fire Ass'n for Handicapped Children v. City
of Philadelphia, 874 F.2d 156, 167-68 (3d Cir. 1989) (no § 1983 liability
for imposing cuts in state services to homes of mentally retarded); Milburn
v. Anne Arundel County Dep't of Social Servs., 871 F.2d 474, 479
(4th Cir. 1989) (no § 1983 liability for child abuse which occurred in
foster home where child was placed by natural parents). In Piechowicz,
however, the court expressly found that the witness had neither been promised,
nor had relied on, federal protection. See Piechowicz, 885 F.2d
at 1210; text accompanying notes 233-42 infra (federal courts have been receptive
to notion of state liability premised on individual's reliance).
n178 Balistreri, 901 F.2d at 700; see also Hynson v. City of Chester, 731
F. Supp. 1239, 1239 (E.D. Pa. 1990) ("DeShaney . . . limited the
responsibility of the state to protect individuals from private violence to
those situations in which an individual is in the custody of the state and
is therefore unable to act on his own behalf."); Dudosh v. City of Allentown,
722 F. Supp. 1233, 1235 (E.D. Pa. 1989) (asserting same point).
n179 Balistreri, 901 F.2d at 700.
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But the Ninth Circuit's treatment of DeShaney ignores language in the opinion
that must be read to distinguish the claim in that case from those
of battered women with protective orders. While DeShaney explicitly [*1304]
discards the traditional elements of the special relationship test
-- state knowledge of the victim's danger and its expressed intent to protect
her n180 -- as sufficient to create a duty on the part of the state
to act on its intent to protect, n181 the granting of an order of protection
constitutes a higher level of state involvement than the traditional
special relationship test required.
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n180 See note 34 supra.
n181 See DeShaney, 109 S. Ct. at 1004 n.4.
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Accordingly, battered women's claims can survive the higher DeShaney standard.
This becomes particularly apparent when one considers these
claims in light of the more expansive definition of "affirmatively placing
in danger," discussed in DeShaney n182 and developed by lower federal
courts. n183 The ability of battered women to meet the substantive due process
standard for state liability outlined in DeShaney also makes
sense from a policy perspective. Imposing liability on a state for its failure
to fulfill its promises to protect specific citizens is neither unfair nor
impractical. Moreover, the policy concerns that underlie the DeShaney Court's
refusal to find state liability are not present in battered women's
cases, where autonomous adults are seeking to have their rights enforced and
where the police, rather than social workers, are enforcing the
clear directives of protective orders.
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n182 See text accompanying notes 137-53 supra.
n183 See text accompanying notes 154-72 supra.
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A. Satisfying DeShaney's Test for a Finding of State Liability in Battered Women's Cases
Under DeShaney, battered women with orders of protection are owed protection
by the state for two alternative reasons. First, battered
women with orders of protection are in the "custody" of the state,
as that term is defined by the Court in DeShaney. n184 Second, battered
women's cases satisfy the elements of duty and causation suggested by the Court's
discussion of Martinez, where the state places an individual
in danger, even without taking her into its custody. n185
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n184 See text accompanying notes 126-31 supra.
n185 See text accompanying notes 137-53 supra.
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1. State Custody of Women with Orders of Protection
Orders of protection constitute a form of state custody, defined in DeShaney
as one of the limited conditions under which the state assumes an
affirmative duty to protect. Initially, it appears that the DeShaney Court defined
custody strictly, n186 with its citation of the examples of
[*1305] imprisonment and involuntary institutionalization. n187 Nonetheless,
on closer examination, it becomes quite plain that the Court
envisioned a broader conception of state custody than its narrow language first
discloses. The Court suggested, for example, that children in a
foster home might fit within its definition of custody. n188
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n186 DeShaney defined custody as the affirmative restraint of a person's liberty
such that the person is unable to act on her own behalf. See
DeShaney, 109 S. Ct. at 1006.
n187 See id.
n188 See text accompanying notes 128-29 supra.
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In setting the parameters of custody in section 1983 claims, the DeShaney
Court ultimately was concerned with the level of state involvement.
The decisive similarity between foster homes and prisons is not the imposition
of helplessness on the individuals in custody, but rather the
state's role in creating the custodial situation. As the Eleventh Circuit emphasized
in Taylor ex rel. Walker v. Ledbetter n189 a sufficient level of
state involvement is the definitive characteristic of state "custody"
in the foster home context:
In this case, the child's physical safety was a primary objective in placing
the child in the foster home. The state's action in assuming the
responsibility of finding and keeping the child in a safe environment placed
an obligation on the state to insure the continuing safety of that
environment. The state's failure to meet that obligation . . . constituted a
deprivation of liberty under the fourteenth amendment. n190
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n189 818 F.2d 791 (11th Cir. 1987).
n190 Id. at 795 (emphasis added).
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Likewise, when a court issues an order of protection to a battered woman, it
indicates that the state will provide for the woman's safety
throughout the period covered by the order, affirmatively assuming the obligation
to protect her if and when the order is violated. n191 The
state thereby takes on responsibility for ensuring her continued protection.
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n191 See note 2 supra.
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When a court issues an order of protection, the state takes responsiblity
for the woman's safety in a manner which restrains her personal
liberty. By creating a barrier between the woman and her batterer, an order
of protection effectively "fences" the battered woman into the
areas protected by the order and therefore considered "safe." The
fence created by an order of protection can surround an area of varying
dimensions, depending on the type of protective order a battered woman receives.
Some orders of protection require the batterer to stay away
from specified places, such as the battered woman's home, workplace, or her
child's school. These orders thus create a relatively small
fenced-in, safe space. In contrast, orders of protection which mandate that
a batterer stay more than one hundred feet from the woman at all
times create a much broader protected space; here the limits are the state's
boundaries, [*1306] since a protective order is enforceable only
within the jurisdiction in which it is granted. n192
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n192 See id. (discussing orders of protection). But cf. P. Finn & S. Colson,
Issues and Practices in Criminal Justice, Civil Protection Orders:
Legislation, Current Court Practice, and Enforcement 14 (Nat'l Inst. of Justice
Mar. 1990) (citing unusual Nebraska statute that requires its
courts to accept orders of protection issued in other states as evidence in
issuing their own orders).
The relevant jurisdiction may be more circumscribed than the state line, however,
since some law enforcement officials are confused as to how
to enforce an order of protection across county lines. See id. Moreover, some
courts will reject petitions for protective orders if a woman moves
to a shelter in another county and the pertinent statute requires that at least
one party reside in the county where the court is situated or
that the alleged incident have occurred there. See id. at 11. For these reasons,
a battered woman is likely to feel that she must stay within her
county to obtain protection.
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The first type of protective order seems to fit the state custody paradigm
more compellingly since it "restricts" the woman to an extremely
confined safe space. But in either case, it is reasonable to assume that a woman
who has sought and obtained an order of protection fears her
batterer and therefore feels constrained to remain within the area in which
the state specifically has promised to provide her protection. And
even state boundaries may seem confining to a woman who has relatives or friends
across state lines to whom she might otherwise flee. Thus,
by providing an order of protection, the state places the woman within DeShaney's
broader custody category of "restraint[s] of personal
liberty." n193
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n193 DeShaney, 109 S. Ct. at 1006.
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Initially, it may appear that the DeShaney Court intended to make involuntariness
a prerequisite to a finding of state custody, particularly since
it cited the examples of imprisonment and involuntary institutionalization.
n194 However, this assumption cannot be derived explicitly from the
general language in DeShaney. n195 Although the DeShaney opinion mentioned incarceration
and institutionalization as examples of custody,
provided by the Supreme Court cases of Estelle v. Gamble and Youngberg v. Romeo,
n196 the Court went on to state that "other similar
restraint[s] of personal liberty" may create state liability, since "it
is the State's affirma [*1307] act of restraining the individual's freedom to
act on his own behalf . . . [that] trigger[s] the protections of the Due Process
Clause." n197 From this language it is by no means clear that
involuntariness is a necessary element of custody. n198
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n194 See id.
n195 Even if this assumption were valid, battered women in some jurisdictions
would be able to meet such an "involuntariness" requirement. See
P. Finn & S. Colson, supra note 192, at 28 ("Judges in Duluth and many
other jurisdictions maintain protection orders in force against the
express wishes of the victim.").
n196 See DeShaney, 109 S. Ct. at 1005-06 (discussing Youngberg v. Romeo, 457
U.S. 307, 324 (1982) (due process clause requires state to
ensure safety of involuntarily committed mental patients) and Estelle v. Gamble,
429 U.S. 97, 103 (1976) (state has duty to provide adequate
medical care to prisoners)). Indeed, the Court's strongest "involuntariness"
language appears only in its explicit summary of Estelle and
Youngberg: "[T]hese cases [, t]aken together, . . . stand only for the
proposition that when the State takes a person into its custody and
holds him there against his will, the Constitution imposes upon it a corresponding
duty . . . ." Id. at 1005 (emphasis added).
n197 Id. at 1006.
n198 Imprisonment itself may raise doubts about the significance of involuntariness.
In our criminal justice system, one may enter voluntarily
into a plea agreement for a lesser charge, thereby contracting away the chance
for an acquittal by a jury, in exchange for a certain specified,
albeit lesser, term of imprisonment. Although the voluntariness inherent in
such a situation may exist only in theory, the constitutionality of
plea-bargaining depends on the presumption that such agreements are made willingly.
See Fed. R. Crim. P. 11(d) ("The court shall not accept a
plea . . . without first, by addressing the defendant personally in open court,
determining that the plea is voluntary and not the result of force
or threats or of promises apart from a plea agreement."). Similarly, a
criminal can be convicted, and thereupon incarcerated, only when criminal
intent (mens rea), indicating a voluntary, deliberate act is found to exist.
See S. Kadish & M. Paulsen, Criminal Law and Its Processes: Cases
and Materials 87-88 (3d ed. 1975).
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2. State Duty and Affirmative Causation of Danger to a Battered Woman
Even absent a finding of state custody by virtue of an order of protection,
battered women can meet the DeShaney standard for a finding of a
state's duty to protect. A battered woman bringing a section 1983 claim must
prove the elements of duty and causation. n199 The language of
DeShaney implies that the duty element may be satisfied where the state affirmatively
places an individual in danger. n200 For battered women,
the elements of duty and causation are inextricably linked. This section demonstrates
that if the state makes a promise, in the form of a
protective order, to protect a woman from her batterer, and if the woman relies
to her detriment upon this promise, then the section 1983
elements of duty and causation, respectively, are met.
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n199 See text accompanying notes 31-37 supra.
n200 See text accompanying notes 146-53 supra.
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In cases in which the state has granted an order of protection to a battered
woman, the state affirmatively "play[s] a part" n201 in the
creation of a dangerous situation. n202 Thus, a state's conduct in granting
an order of protection to a battered woman gives rise to an
affirmative duty to protect her. n203 The requirement of causation, namely that
the state [*1308] played a role in causing the woman's
danger, may be satisfied in two ways when an order of protection goes unenforced.
First, the state gives the woman seeason reason to forgo
self-defense and other self-help remedies in reliance on the order. Second,
the issuance of an order of protection results in a high likelihood of
retaliation by the batterer.
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n201 Wood v. Ostrander, 879 F.2d 583, 590 (9th Cir. 1989) (distinguishing
DeShaney, in which state "'played no part'" in creation of danger
(quoting DeShaney, 109 S. Ct. at 1006)), cert. denied, 59 U.S.L.W. 3325 (1990).
n202 See notes 209-11 and accompanying text infra; text accompanying notes 243-46 infra.
n203 Cf. Cornelius v. Town of Highland Lake, 880 F.2d 348, 357 (11th Cir.
1989) (town officials' affirmative act of establishing inmate
work-squad created duty to protect employee thereby endangered), cert. denied,
110 S. Ct. 1784 (1990); Wood, 879 F.2d at 590 (state's
affirmative role in creation of dangerous situation resulting in rape created
affirmative duty to provide protection); text accompanying notes
154-72 supra (discussing Cornelius and Wood).
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a. State Duty in Battered Women's Cases. Supporting the assertion that reliance
upon a state's promise to provide services gives rise to a
concomitant state duty to provide those services is the argument that, when
the state holds a monopoly on legal services, reliance upon the
state to provide those services is not a matter of choice. n204 Where the state
monopolizes the avenues of relief to private individuals, it strips
them of other opportunities for self-help. n205 In refraining from violent self-help
in domestic violence situations, battered women rely upon the
state's monopoly on legitimate force and protection against crime. n206 Ordinarily,
because the state cannot provide protection in all cases,
and indeed is not required to, the justification of self-defense allows those
who are in imminent danger of private harm and who are without
state protection to protect themselves through violent means. Self-defense,
however, typically is difficult for battered women to prove. n207
The availability of orders [*1309] of protection is an acknowledgement of battered
women's need to turn to the state for protection, having
no other realistic, legal means for defending themselves against private violence.
n208
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n204 Cf. Boddie v. Connecticut, 401 U.S. 371, 381, 384 (1971) (where state
has monopoly on means for obtaining legal divorce, it is a violation
of due process to preempt the right to do so without giving all citizens access
to prescribed means); Archie v. City of Racine, 847 F.2d 1211,
1222 (7th Cir. 1988) (noting that, where state monopolizes avenues of relief,
it has obligation to give aid), cert. denied, 109 S. Ct. 1338 (1989).
n205 See DeShaney, 109 S. Ct. at 1012 (Brennan, J., dissenting); Archie, 847
F.2d at 1222; Bandes, The Negative Constitution: A Critique, 88
Mich. L. Rev. 2271, 2283 (1990); Kreimer, Allocational Sanctions: The Problem
of Negative Rights in a Positive State, 132 U. Pa. L. Rev. 1293,
1295 (1984); Wald, Government Benefits: A New Look at an Old Gifthorse, 65 N.Y.U.
L. Rev. 247, 250-51, 263 (1990).
It should be noted that battered women typically have few self-help options.
See Brown, supra note 2, at 262; Note, supra note 41, at 893.
They tend to be cut off from the community and social support networks. Note,
supra note 41, at 893. Church, family, and friends often urge
battered women to remain with their batterers and to try to "work things
out." Id. (quoting D. Martin, Battered Wives 82-87 (1976)); see Note,
The Battered Woman: When a Woman;s Place Is in the Courts, 10 Crim. Just. J.
273, 302 (1988). The few existing shelters are poorly funded,
have limited space, and provide only a temporary solution. A. Browne, When Battered
Women Kill 111 (1987); Note, supra, at 302. Attempts at
self-defense, if successful, often result in criminal prosecution. See note
207 infra. Thus, in many cases, an order of protection is the only
realistic legal recourse a battered woman has.
n206 See Aynes, supra note 45, at 87-88; Bandes, supra note 205, at 2271,
2290, 2321; Sullivan, Unconstitutional Conditions, 102 Harv. L.
Rev. 1414, 1452-53 (1989).
n207 Since the best opportunity for a battered woman to retaliate is when
her batterer is helpless (e.g., asleep in a chair or with his back to
her), battered women usually cannot prove the traditional self-defense requirements
-- imminence of threatened harm, a sufficiently serious
level of threatened harm, and, in many jurisdictions, the attempt to retreat
or escape. See C. Gillespie, Justifiable Homicide 50-53 (1989);
Schneider, Equal Rights to Trial for Women: Sex Bias in the Law of Self-Defense,
15 Harv. C.R.-C.L. L. Rev. 623, 630-36 (1980); see also A.
Browne, supra note 205, at 72 (self-defense strategy not tailored to situation
of most battered women); W. Stacey & A. Shupe, The Family
Secret: Domestic Violence in America 119, 153-54 (1983) (criminal justice system
reluctant to recognize self-defense for battered women); L.
Walker, Terrifying Love 255 (1989) ("[T]he prevailing norms of our criminal
justice system work against women, especially those who kill.").
When battered women have resorted to self-defense, they have been prosecuted
and often convicted for murder. See A. Browne, supra note
205, at 159; C. Gillespie, supra, at 53; L. Walker, supra, at 255; Thyfault,
Browne & Walker, When Battered Women Kill: Evaluation and Expert
Witness Testimony Techniques, in Domestic Violence on Trial 72 (D. Sonkin ed.
1987).
n208 See Bandes, supra note 205, at 2338; cf. Edelman, The Next Century of
Our Constitution: Rethinking Our Duty to the Poor, 39 Hastings
L.J. 1, 21 (1987) (contract approach to fundamental rights acknowledges need
for given level of protection by state so that citizens forgo
"state of nature" behavior punishable in governmental state).
"[T]he rule of law means that citizens must forgo the use of private
violence in return for the state's promise of protection . . . " Speech
by
then Judge Kennedy, Ninth Circuit Court of Appeals, to Sixth South Pacific Judicial
Conference, Auckland, N.Z. (Mar. 3-5, 1987) (discussing
"temptation of the victim to take the law into his own hands" as "disturbing
outgrowth of [the justice] system's lack of concern or protection for
victims"). If battered women are to forgo the use of self-defense, however,
the state's promise must be firm and reliable.
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b. State Causation in Battered Women's Cases. By providing orders of protection,
the state encourages reliance on its services by women who
suffer battering. A battered woman who is granted an order of protection is
thus justified in believing that the police will enforce the order.
Indeed, the very name given the order suggests this assurance. n209 Having obtained
an order of protection, she might not seek further
outside assistance, or she might not take additional measures to ensure her
safety, such as fleeing her home to seek protection at a shelter or
with relatives or filing a criminal complaint to have the batterer prosecuted.
A woman who has not received an order of protection and still
believes herself to be in grave physical danger is more likely to seek other
help than a woman who believes she will be protected by the state.
n210 In this way, a state that fails to enforce its protective order causes
the battered woman to remain dangerously complacent in the face of
an empty promise. n211 The [*1310] element of state causation thus is clearly
met, since the state's action in issuing an order of protection
without enforcement directly causes the battered woman's detrimental reliance.
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n209 An order of protection is often quite specific in its assurances. See
P. Finn & S. Colson, supra note 192, at 42. And, in any case, a woman
would scarcely go to the trouble and danger of obtaining an order of protection
if she did not believe that it represented an enforceable promise
by the state. See text accompanying notes 243-46 infra.
n210 Cf. Sorichetti v. City of New York, 65 N.Y.2d 461, 469-71, 482 N.E.2d
70, 75-76, 492 N.Y.S.2d 591, 596-97 (1985) (finding that battered
woman with order of protection relied on police officers to investigate husband's
delay in returning daughter from visitation, with result that wife
could not and did not prevent husband from mutilating daughter); De Long v.
County of Erie, 60 N.Y.2d 296, 305, 457 N.E.2d 717, 721, 469
N.Y.S.2d 611, 616 (1983) (finding state liability where woman called 911 to
report burglary and relied to her detriment upon dispatchers'
assurances of help).
n211 An analogous hypothetical illustrates this theory of causation. Assume
a woman has a fatal allergy. She has only a few options: she may
quarantine herself within the confines of her home, she may venture outside
only in a uniform designed to protect her from allergens, or she may
seek a cure. If someone were to release an allergen in the presence of the woman,
that person would place the woman in danger. Likewise, if a
"qualified person," whom the woman was justified in trusting, were
to offer the woman a cure which in fact was only a placebo, that person
would place her in danger since, in reliance on the "cure," she might
alter her behavior by venturing outside without her protective uniform,
believing herself to be safe. One would not doubt causation in either case;
the offeror of the "cure" causes the woman's exposure to the
allergen as surely as does the contaminator. A battered woman has similarly
limited options. If she seeks the "cure" of an order of protection,
the state's failure to enforce it may place the woman in danger by causing her
to rely to her detriment upon its promised protections. (This Note
credits this analogy to Prof. Albert Borgmann, Philosophy Dep't, University
of Montana.)
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State tort law traditionally has recognized the theories of duty and causation
that flow from the reliance of individuals on specific state
assurances of assistance. n212 In Sorichetti v. City of New York, n213 for example,
a battered woman brought a successful state tort action
for negligence against the city for its failure to enforce her order of protection,
which granted her husband limited visitation rights to their child.
n214 The New York State Court of Appeals affirmed the lower court's finding
of state liability for the husband's assault of the plaintiff's child
while the infant was with the father for visitation. n215 The plaintiff, worried
when her daughter was not returned to her at the expected time,
went to the police. n216 The police told the plaintiff to wait until a certain
time, "creating the clear impression that at that time, when [the
father's] failure to return would be a violation of the order of protection,
some action would be taken." n217 During the time in which the order
should have been enforced, the child was injured. n218 The court held that it
was reasonable for a jury to find that the state's breach of its
duties was the proximate cause of the infant's injuries. n219
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n212 See Note, Police Liability for Negligent Failure to Prevent Crime, 94
Harv. L. Rev. 821, 826 (1981) (explaining that courts generally find
duty to provide protection where police expressly promise protection to specific
individuals; citing state cases).
n213 65 N.Y.2d 461, 482 N.E.2d 70, 492 N.Y.S.2d 591 (1985).
n214 Id. at 465, 482 N.E.2d at 72, 492 N.Y.S.2d at 593.
n215 Id. at 471, 482 N.E.2d at 77, 492 N.Y.S.2d at 598.
n216 Id. at 466, 482 N.E.2d at 73, 492 N.Y.S.2d at 594.
n217 Id. at 471, 482 N.E.2d at 76, 492 N.Y.S.2d at 597.
n218 See id.
n219 See id. at 471, 482 N.E.2d at 77, 492 N.Y.S.2d at 597. The court's finding
of proximate causation can be explained only by the
presumption that the plaintiff would have taken some other action, such as refusing
visitation or retrieving the child herself, had she not relied
upon the police to enforce the order of protection.
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Similarly, in De Long v. County of Erie, n220 the state was held to have [*1311]
violated a special duty to a woman who had called 911 for
assistance, reporting that a burglar was trying to enter her home. n221 The
court found that the 911 dispatcher had responded negligently to
the call and that the woman had relied upon the assurance of help. n222 The
New York State Court of Appeals pointed out that the city had
advised those seeking emergency assistance to dial 911, rather than the general
number for the local police, to obtain a quicker response. n223
Thus, since the dispatcher erroneously assured De Long that someone would come
to help "right away," she remained in her home, did not seek
other assistance, and subsequently was killed by the burglar. n224 The court
found that the dispatcher's negligent action heightened the risk to
De Long's life because she relied exclusively upon 911's promise of assistance.
n225
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n220 60 N.Y.2d 296, 457 N.E.2d 717, 469 N.Y.S.2d 611 (1983).
n221 Id. at 306, 457 N.E.2d at 722, 469 N.Y.S.2d at 616.
n222 Id. at 305, 457 N.E.2d at 721, 469 N.Y.S.2d at 616.
n223 Id.
n224 Id.
n225 See id. Recognizing a reliance argument for battered women would not,
as it might seem, imply valid § 1983 substantive due process
claims for all 911 callers who are given poor advice. Although the causation
theory for battered women rests upon a reliance argument similar to
those of state tort cases such as De Long, most of these tort claims would fail
to meet the standards for a valid § 1983 action. First, only §
1983 claims alleging at least deliberate indifference would be successful. See
notes 35-37 and accompanying text supra. Second, the causation
element in 911 cases may not always be met. A battered woman's reliance begins
when the order is issued, prior to any actual occurrence of
danger; her reliance plays a role in creating the danger. A 911 caller, however,
relies only from the time of her phone call; she is already in
danger at the time of the call, aware that she is in danger, and not under the
false belief that she is safe. The state plays no role in creating
the danger reported. A § 1983 action succeeds only if the victim's reliance
on the advice places her in further danger. A court may have
particular difficulty finding causation in a 911 case, where a dispatcher hurriedly
gives information over the telephone. By contrast, the state in
a battered woman's case is involved over a set period of time, see text accompanying
notes 253-55 infra, and the case involves a judicial order
tailored to individual circumstances, see text accompanying notes 249-50 infra.
Finally, a battered woman's case does not carry with it the
same problems of potential false alarms inherent in 911 cases. See Archie v.
City of Racine, 847 F.2d 1211, 1223 (7th Cir. 1988), cert. denied,
109 S. Ct. 1338 (1989). In a 911 case, there is no way for a dispatcher to assess
the likelihood that the call is genuine, whereas a police officer
responding to a call from a battered woman may first check to see if the woman
has an order of protection on file with that office. Besides
mandating a response, the order assures the police that a judge has found protection
in this particular case to be warranted, indicating a
greater likelihood of genuineness. See note 2 supra; note 259 and accompanying
text infra.
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Although, as DeShaney makes clear, n226 not every state tort claim constitutes
a viable section 1983 action, n227 a state's duty to act for
purposes [*1312] of section 1983 traditionally has been defined on the basis
of common law tort principles. n228 Indeed, cases like Martinez
n229 and Estelle, n230 still good law under DeShaney, n231 appear to reaffirm
the idea that section 1983 duty and causation analyses properly
parallel common law analysis. n232 Some lower federal courts thus have invoked
the concept of detrimental reliance in determining whether
state liability for inaction will lie under section 1983. n233
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n226 See DeShaney, 109 S. Ct. at 1007.
n227 It is argued frequently that § 1983 may not be used simply as a
"font of tort law to be superimposed upon whatever systems may already
be administered by the states." E.g., Paul v. Davis, 424 U.S. 693, 701
(1976); see Daniels v. Williams, 474 U.S. 327, 332 (1986) (quoting Paul,
424 U.S. at 701); Parratt v. Taylor, 451 U.S. 527, 544 (1981) (same), overruled
on other grounds, Daniels, 474 U.S. at 330-31. One technique
that the Court has employed to limit the scope of § 1983 is to take a restrictive
approach to constitutional interpretation. See Mead, supra note
37, at 14 ("Indeed, it sometimes appears that current constitutional doctrine
is evolving for the sole [and illegitimate] purpose of cutting down
the number of section 1983 cases.").
It should be noted that the cases which have caused the greatest concern over
the expansive use of § 1983 are prisoner property-deprivation
cases, which often involve trivial claims regarding the loss of items such as
cigarettes or toothpaste. Id. at 12-13. However, when essential
liberties are involved, as they are in battered women's cases, the use of §
1983 cannot possibly be denounced. Indeed, the increased judicial
work load caused by an expansion of substantive rights is partly the result
of a long-overdue response to groups, such as (battered) women,
traditionally disadvantaged in, and indeed by, our system. See Higginbotham,
The Priority of Human Rights in Court Reform, in The Pound
Conference: Perspectives on Justice in the Future 87 (A. Levin & R. Wheeler
eds. 1976). Moreover, the historical context of the Ku Klux Klan Act
of 1871, the precursor of § 1983, evinces a purpose to provide protection
to private citizens from both official inaction and from private
violence. Soifer, Moral Ambition, Formalism, and the "Free World"
of DeShaney, 57 Geo. Wash. L. Rev. 1513, 1524 (1989); Note, Developments in
the Law -- Section 1983 and Federalism, 90 Harv. L. Rev. 1133, 1153-54 (1977).
The remaining dilemma, therefore, is how to provide a
systematic method for limiting the application of § 1983 "without
impairing its utility as a method for protecting essential liberties."
Mead, supra
note 37, at 13.
n228 Mead, supra note 37, at 1-2; Note, supra note 34, at 1051; see Monroe
v. Pape, 365 U.S. 167, 182-83, 187 (1961) (§ 1983 should be
"read against the background of tort liability that makes a man responsible
for the natural consequences of his actions"), overruled on other
grounds, Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 663 (1978);
Archie, 847 F.2d at 1222 ("the constitutional rule proves to
be a shadow of the common law of torts").
n229 444 U.S. 277, 285 (1980); see text accompanying notes 137-45 supra.
n230 429 U.S. 97, 103-04 (1976) ("An inmate must rely on prison authorities
to treat his medical needs; if the authorities fail to do so, those
needs will not be met.").
n231 See DeShaney, 109 S. Ct. at 1004 n.4, 1005-06.
n232 See Note, supra note 34, at 1054; text accompanying notes 137-45 supra.
n233 See Bandes, supra note 205, at 2293 ("The tort law analogy on which
courts often rely is that government will be charged with an
affirmative duty to act only when it has first placed an individual in a condition
of helplessness or otherwise invited reliance on its protection."
(emphasis added)).
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Tort concepts of duty and causation, for example, were employed by the District
Court for the Western District of Pennsylvania in P.L.C. v.
Housing Authority, n234 a section 1983 case. In P.L.C., a female tenant in a
public housing project was raped by a building maintenance man
employed by the state housing authority. The employee had been provided with
a key to the woman's apartment in order to carry out his job
responsibilities. n235 The court emphasized the relationship between the housing
authority and the plaintiff, noting that "it was expected and
encouraged [*1313] that citizens would rely upon the availability of [safe]
housing." n236 Because the woman had relied upon the state in this
way, her "relationship differ[ed] only in degree from that of an inmate
in a state institution or a patient in a state hospital." n237 The court
held
that, since the plaintiff had relied to her detriment upon the state's promise
of safe housing, the state could be found liable for failing to prevent
the rape. n238
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n234 588 F. Supp. 961 (W.D. Pa. 1984).
n235 Id. at 965.
n236 Id.
n237 Id.
n238 See id. at 965-66.
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In Archie v. City of Racine, n239 the Seventh Circuit also suggested that
such a reliance theory, with the appropriate level of intent, might be
used in the context of a section 1983 claim. In Archie, the friend of a woman
experiencing serious respiratory problems called 911 for
assistance. n240 The 911 dispatcher on two different occasions negligently advised
the friend to have the woman breathe into a paper bag.
n241 The court suggested that, had plaintiffs shown that the woman relied on
this advice and therefore failed to call a private ambulance
service, the state may have been found liable for the proximate causation of
her death. n242
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n239 847 F.2d 1211 (7th Cir. 1988), cert. denied, 109 S. Ct. 1338 (1989).
n240 Id. at 1213.
n241 Id.
n242 See id. at 1218.
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Besides endangering a battered woman by causing her to rely upon it, an order
of protection may imperil a battered woman directly. Obtaining
an order of protection normally entails leaving, and thereby enraging, the batterer.
It is at this stage that battered women typically experience
the most violent beatings, many of which result in their deaths. n243 Moreover,
under-enforcement of orders of protection reinforces [*1314]
battering behavior by undermining the authority of the order in the eyes of
the batterer. n244 By aquiescing in private violence despite its
promise to do something about it, the state is partly responsible for the plight
of the powerless. n245 Thus, it is misleading and inappropriate to
focus exclusively on the physical, immediate cause of the battered woman's injuries
-- namely, the batterer. n246 It is largely within the state's
power, by enforcing orders of protection properly, to mitigate or eliminate
the danger it creates by granting the order.
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n243 See A. Browne, supra note 205, at 110, 114 (evidence suggests that batterer's
violence continues to escalate after separation); C.
Gillespie, supra note 207, at 150-51 ("[l]eaving may be the most dangerous
thing a battered woman can do," and batterers are likely to punish
and even kill a woman "for any display of independence that might presage
a desertion"); L. Walker, supra note 207, at 65, 256 ("Separation
creates a period of unprecedented danger in battering situations. . . . The
batterer would often rather kill . . . than separate from the battered
woman."); Note, supra note 205, at 284 ("There is good reason to be
afraid. 'It is during a separation from the batterer that a battered woman .
. . [is] most likely to be killed.'" (quoting Dr. L. Walker)); Note, supra
note 41, at 893 (batterer likely to retaliate when woman pursues
affirmative, legal action); Simpson, Beware of Paper Tigers, Time, Mar. 27,
1989, at 104 ("[E]xperts say some men, panicked by the loss of
control over their previously cowered partners, become even more violent after
separation. . . . 'It's when she leaves that he kills.'" (quoting
Ellen Pence, Domestic Abuse Intervention Project, Duluth, Minn.)); Fagin, Vow
to Enforce Protective Orders, Newsday, Jan. 6, 1989, at 4 (three
Long Island women killed by their estranged or former husbands after obtaining
orders of protection which were not properly enforced).
Some studies have shown that orders of protection reduce recidivism in domestic
violence, but, significantly, they base their findings on cases
in which an order of protection not only has been issued, but also has been
properly enforced through arrests. See Lerman, supra note 2, at
123 (citing study by Police Found. determining that deterrent effect of arrest
on domestic abuse is dramatically greater than that of social-work
techniques used by police, such as mediation or temporary separation of parties);
Note, supra note 41, at 879 (citing study by Nat'l Inst. of
Justice concluding that victims of domestic assaults are about twice as likely
to be assaulted again if police do not arrest attackers); Note,
supra note 49, at 791 (same).
n244 "Each arrest . . . performs both individual and group functions:
it deters violence by the arrestee, and helps classify violent behavior as
illegal in the eyes of the offender, victim and the community at large."
Brown, supra note 2, at 266; see Gee, supra note 3, at 556; Lerman,
supra note 2, at 127; Note, supra note 49, at 790.
n245 Bandes, supra note 205, at 2293.
n246 See id.
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B. Distinguishing Battered Women's Cases from DeShaney
Many of the features of the DeShaney case that are crucial in explaining the
Court's refusal to find a state duty to intervene n247 are not
present in battered women's cases. First, the state involvement in battered
women's cases is of a different type and degree than that in
DeShaney. In contrast to DeShaney, state involvement in battered women's cases
is official, continuous, and judicially manageable. Second,
there is a marked difference between the potentially countervailing concerns
of state intervention on behalf of the victim raised by the two
types of cases. Not only is the role of the police different that of social
workers, but the issues raised by competing parental rights in child
abuse cases are absent in battered women's cases.
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n247 See Note, supra note 212, at 832-34 (weighty policy considerations typically underlie findings that no state duty to provide safety exists).
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1. Orders of Protection and State Involvement
The state's grant of an order of protection unambiguously interposes the state
in the private life of a battered woman, thus constituting a type
and degree of state involvement found lacking in DeShaney. n248 A review of
the particular characteristics of an order of protection readily
illustrates this point.
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n248 See text accompanying notes 111-13 supra.
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First, by granting an order of protection, a court acknowledges that the battered
woman is in danger and in need of protection by the state.
Unlike the state action in DeShaney, which the Court apparently regarded [*1315]
as gratuitous, minimal, and ad hoc, the order of protection
is a formal recognition that state action is imperative. A woman seeking an
order of protection must make a prima facie showing to a judge,
based upon a signed petition alleging specific facts, that she is in need of
state protection. n249 The drastic nature of orders of protection is
evidence that battered women who obtain them are not simply ordinary members
of the public facing ordinary dangers from private actors.
Battered women who receive these orders have been officially singled out because
a judge, based on a detailed factual showing provided in a
petition, deemed them to be in a situation so exigent as to justify the grant
of this extraordinary ex parte relief, which directly restricts the
liberty of another person, the batterer. n250 Although Joshua DeShaney may have
been in desperate need of protection, no judicial order
summarily restrained the liberty of a third person and signalled to the child
welfare agency that this was a special case in which the agency was
obligated to intervene. Thus, the degree of state action in battered women's
cases is much more acute than that found in DeShaney. n251 An
order of protection simply would serve no purpose if its guarantees were not
enforced adequately or if a battered woman were required to go
back to court to demonstrate her right to enforcement of the order. n252
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n249 See note 2 supra. Although an order of protection literally is an injunction
against the batterer, see id., it responds to the particular
woman's need for protection and operates as a guarantee to the woman that this
protection will be provided. The victim-centered nature of
orders of protection is evidenced by the practice of issuing the order to the
woman at a hearing at which the batterer is not present, by the
requirement that the woman make a sufficient showing of need for such protection,
and by the provision for enforcement of the order through
the arrest of her batterer. See id.
n250 See id. Indeed, some commentators have noted that orders of protection
seem redundant, since they protect the woman from the crime
of assault, which itself provides grounds for arrest. See Brown, supra note
2, at 261-62; Finn, supra note 2, at 55. Thus, the state's action in
granting the order of protection clearly signals urgently needed, affirmative
protection independent of that already provided to the general
public.
n251 State courts have found battered women with orders of protection to be
persons to whom the state owes a special duty of protection
under tort theories. See, e.g., Baker v. City of New York, 25 A.D.2d 770, 772,
269 N.Y.S.2d 515, 518 (1966) ("Plaintiff was thus singled out by
judicial process as a person in need of special protection and peace officers
had a duty to supply protection to her."); Bruno v. Codd, 90 Misc.
2d 1047, 1050, 396 N.Y.S.2d 974, 977 (Sup. Ct. 1977) ("Indeed, it has been
held that women armed with orders of protection are owed 'a
special duty' of protection by the police." (citation omitted)), rev'd
on other grounds, 64 A.D.2d 582, 407 N.Y.S.2d 165 (1978), aff'd, 47 N.Y.2d
582, 393 N.E.2d 976, 419 N.Y.S.2d 901 (1979).
n252 See Quittner, Cops' Authority Debated, Newsday, Jan. 6, 1989, at 4. As
the Executive Director of the Governor's Commission on Domestic
Violence in Albany, New York, stated: "The intention of an order of protection
is for the victim to have immediate protection. Why would we get
an order of protection if we have to go back to court to get it enforced?"
Id.
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Second, the continuous nature of the state action promised by orders of protection
distinguishes them from the state action involved in
[*1316] DeShaney. In battered women's cases, there is active judicial interdiction
ordering state enforcement over a set period of time. The
state thus pledges continuous involvement over that period specified in the
order of protection; the woman may request police assistance upon
a violation of the order at any time during this period. n253 In DeShaney, on
the other hand, the state's action vis-a-vis Joshua was temporary,
ending when Joshua was placed back into his father's home. n254 The DeShaney
Court emphasized that, although "the State once took
temporary custody of Joshua . . . the State does not become the permanent guarantor
of an individual's safety by having once offered him
shelter." n255 Orders of protection thus escape two concerns which prevented
the DeShaney Court from finding that a state duty to protect
arose from the involvement of its social workers: such orders are promises of
continuous protection and are at the same time valid for a finite
period of time. While the state does become bound to protect the woman under
the terms set forth in the order, there is no reason to fear that
it will assume the role of a "permanent guarantor" of the woman's
safety.
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n253 See note 2 supra.
n254 The DeShaney Court found that the state's removal of Joshua from his
home did not trigger ongoing responsibility for him, since the state
subsequently returned Joshua, unharmed, to the same situation from which it
had removed him. See DeShaney, 109 S. Ct. at 1006. For the
argument that an order of protection is not merely an "extra" remedy
that leaves battered women no worse off than before its issuance, see
notes 243-46 and accompanying text supra.
n255 DeShaney, 109 S. Ct. at 1006. Apparently, the Court did not regard the
child welfare agency's monitoring of the DeShaney household as a
continuation of state care.
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Third, orders of protection elude the concern, expressed in DeShaney, n256
that a state may impermissibly be held responsible for guaranteeing
a certain minimal measure of safety to the general public. n257 The state's
due process liability for inadequate protection of battered women is
limited automatically to the number of petitions for orders of protection that
satisfy the requirements for injunctive relief. n258 Furthermore,
orders of protection distinguish their recipients from the general public, by
defining a discrete universe of people to whom protection is owed
and by ensuring that, from within the universe of battered women, only those
who need protection most are given protective orders. n259
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n256 In DeShaney, the Court feared that holding the state liable in the case
before it would necessarily imply that the state was responsible for
protecting all children, regardless of the state's previous involvement. See
id. at 1003.
n257 See text accompanying note 114 supra.
n258 See note 2 supra.
n259 See Sorichetti v. City of New York, 65 N.Y.2d 461, 469-70, 482 N.E.2d
70, 76, 492 N.Y.S.2d 591, 596-97 (1985) ("Significantly, the class
of potential victims to whom a duty to investigate might arise is necessarily
limited by the terms of the order."). Because orders of protection
are granted on an individual and fact-specific basis, recognizing the validity
of due process claims by battered women with these orders would
not imply recognition of a duty in all cases in which the state grants a pro
forma license or order. See id. at 469, 482 N.E.2d at 75, 492
N.Y.S.2d at 596 ("The order evinces a preincident legislative and judicial
determination that its holder should be accorded a reasonable degree
of protection from a particular individual.").
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[*1317] In sum, orders of protection represent state action which is not analogous,
in degree or kind, to the state's action in DeShaney. While
Joshua DeShaney was never given any express, much less judicial, promise of
protective measures, a battered woman with a protective order
has received a judicial hearing, resulting in a court order which explicitly
promises her certain protections and which prohibits certain action on
the part of the batterer. An order of protection therefore constitutes officially
ordered protection, to be provided continuously throughout the
duration of the order, to a specific person. Thus, the concerns motivating the
DeShaney holding -- foreseeability, liability, and cost -- are
greatly reduced.
2. Countervailing Rights and Police Protection
Battered women's cases also must be distinguished generally from child abuse
cases like DeShaney because the problems inherent in cases
involving state intervention to protect children are absent in cases involving
battered women. In cases of child abuse, the state is dealing with
minors. Thus, the interests of a child's individual liberty competes with the
interests of the parental or family relationship. n260 Parents
themselves have certain rights with respect to their children. n261 Indeed,
"[t]he constitutional right to associate with family members is
protected by the due process clause of the fourteenth amendment." n262
Additionally, since minor children effectively are not able to request
state protection themselves, the state must act on its own initiative to intervene
in a situation where it may be interfering with the rights of
the child's parents.
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n260 See DeShaney, 812 F.2d at 303-04.
n261 See Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (establishing a home
and bringing up children is recognized due process right); Gee,
supra note 3, at 560 (same).
n262 Lipscomb ex rel. DeFehr v. Simmons, 884 F.2d 1242, 1244 (9th Cir. 1989),
reh'g granted en banc, 907 F.2d 114 (9th Cir. 1990); see also
Santosky v. Kramer, 455 U.S. 745, 753 (1982) (freedom of personal choice in
matters of family life is constitutionally protected); Quilloin v.
Walcott, 434 U.S. 246, 255 (1978) (same); Moore v. City of E. Cleveland, 431
U.S. 494, 505-06 (1977) (right of family members to choose to
live together is constitutionally protected).
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Where a battered women has received an order of protection, on the other hand,
the woman has already severed the family unit by seeking and
obtaining the order, which prohibits the batterer from going near the woman.
n263 The woman thereby relieves the state, concerned with
respecting [*1318] the integrity of the family unit, of the risks involved in
making the initial decision to intervene. Moreover, the state is
dealing with an adult, indeed, one who has requested the state's intervention.
Thus, the "razor's edge" problem of double liability, which
concerned both the Supreme Court and the Seventh Circuit in DeShaney in the
context of providing protective services to children, n264 is
absent when a police officer acts under the mandate of an order of protection.
n265 If the woman asks for help because the terms of the order
of protection have been violated, a police officer is authorized expressly to
take certain action, usually to arrest the batterer. n266
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n263 See note 2 supra. This is not the case in the more unusual circumstance
in which an order of protection does not separate the batterer
and the woman, because the couple chooses to continue living together. Here,
the order simply proscribes certain behavior by the batterer,
such as harassing his wife. See Lerman & Livingston, supra note 2, at 2.
Even so, although the family unit is not divided in a physical sense, it
has been disrupted by the interposition of an order which limits the batterer's
behavior and which both the victim and the batterer know is
enforceable by the police.
n264 See DeShaney, 109 S. Ct. at 1007; DeShaney, 812 F.2d at 304; notes 120-21
and accompanying text supra. Both courts worried that an
agency could be sued by the parent, for interfering with the parent-child relationship,
as well as by the child, for failing to provide proper
protection.
n265 See DeShaney, 109 S. Ct. at 1007.
n266 See note 2 supra.
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Battered women's cases also differ from child abuse cases like DeShaney because
the duties of police officers are clearer and more manageable
than those of child welfare agencies. To begin with, the duties of a child welfare
agency are not clearly delineated; such agencies typically are
accorded great discretion in the handling of cases so as to foster creative
and sensitive resolution of family disputes. n267 Fear of liability at
every step might result in diminished creativity and quality of care. n268 Furthermore,
the duties of these agencies may be conflicting or
ambiguous. n269 While an agency may be expected to try to strengthen family
unity and self-support, for example, it nonetheless must watch
for possible exploitation of the child and must ensure that the family meets
the agency's standards. n270 Therefore, it is not always clear when
the agency's intervention is sufficient to hold the state responsible for harm
to a child which it could have prevented. n271 Finally, courts may
consider it beyond their expertise to determine whether a discretionary act
of a trained family caseworker was or was not appropriate. n272 An
order of [*1319] protection, by contrast, clearly indicates the conduct required
of the police. It will, for example, authorize the arrest of the
batterer at the moment the order of protection is violated. n273 A police officer,
unlike a child welfare caseworker, need only enforce the order
as written and plays no role in the nebulous decision of whether, and what type
of, remedial or punitive action is required; a judge has already
mandated the type of action to be taken.
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n267 See DeShaney, 812 F.2d at 304; Doe v. New York City Dep't of Social Servs.,
649 F.2d 134, 142 (2d Cir. 1981), cert. denied, 464 U.S. 864
(1983).
n268 See Jaffe, Suits Against Governments and Officers: Damage Actions, 77
Harv. L. Rev. 209, 231 (1963) (courts often justify government
non-liability by arguing that fear of liability may produce excess caution).
n269 See Wyman v. James, 400 U.S. 309, 319 (1971); Doe, 649 F.2d at 142.
n270 See Wyman, 400 U.S. at 319; Doe, 649 F.2d at 142.
n271 In DeShaney, the Court found that the limited state action that did occur
effectively amounted to inaction because the state did not
increase the danger to Joshua DeShaney. See DeShaney, 109 S. Ct. at 1006.
n272 See Lloyd v. Loeffler, 694 F.2d 489, 492 (7th Cir. 1982); see also Jaffe,
supra note 268, at 235-37 (courts may not have expertise to
apply standards like "reasonableness" and "negligence" to
complex governmental decisions).
n273 See note 2 supra. Orders of protection often are very specific in delineating
the kinds of actions which constitute violations. See P. Finn &
S. Colson, supra note 192, at 42 (giving examples of specifically worded orders,
including some which specify "how the batterer may obtain his
property and whether the parties may meet together with attorneys"). Therefore,
police rarely should have difficulty determining whether a
given action violates the order and thereby triggers authorized police response.
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The role of the police in enforcing orders of protection is also different
than that of caseworkers in child abuse cases. The role of a caseworker
often is that of counselor or mediator. She is expected first to try to resolve
the dispute in a peaceful and sensitive manner, resorting to such
drastic measures as removing the child forcibly from the home only if those
efforts fail. n274 Police, however, are confined to the more limited
role of enforcing the laws. Indeed, police often feel inadequately prepared
to handle the sensitive issues underlying domestic disputes and do
not envision themselves as counselors. n275 Since orders of protection clearly
mandate enforcement, and do not require the sort of mediation
and counseling caseworkers are expected to provide, they plainly restrict police
to the more circumscribed duty of law enforcement for which
they are better equipped. n276
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n274 In DeShaney, for example, the Department of Social Services first entered
into a voluntary, informal agreement with Joshua's father,
according to which Joshua was to remain in the DeShaney household provided that
his father cooperated in the achievement of certain goals
set by DSS. DeShaney, 109 S. Ct. at 1001.
n275 See C. Gillespie, supra note 207, at 13; W. Stacey & A. Shupe, supra note 207, at 155-56, 178-80; Reluctant Police, supra note 1, at A1.
n276 See note 2 supra.
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Moreover, courts traditionally have been willing to find that the police have
a duty to protect in particular cases because they occupy the
unique role of enforcers of the law. Although the police do not have a duty
to protect the public in general from harm, n277 a duty to protect a
specific individual has been found where protection in a certain circumstance
is mandated by statute or police regulation. n278 In battered
[*1320] women's cases, the statutes that provide for orders of protection typically
mandate police enforcement n279 and should be construed
as creating a duty on the part of the police to protect the woman who has received
the order.
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n277 See Wylie, Police Liability for Failure to Provide Protection, 1 Police Misconduct & Civ. Rts. L. Rep. 169, 169, 172 (1986).
n278 See, e.g., Rascon v. Hardiman, 803 F.2d 269, 276-77 (7th Cir. 1986) (police
officer may not ignore duty imposed by office to intervene to
prevent unwarranted use of force by another officer); Sims v. Adams, 537 F.2d
829, 831-32 (5th Cir. 1976) (defendant-police officer subject to
§ 1983 liability where he breached responsibility under Charter of Atlanta
to discipline other officer who beat plaintiff, result of which was
deprivation of plaintiff's constitutional rights); Byrd v. Brishke, 466 F.2d
6, 11 (7th Cir. 1972) (police obligated to perform duties imposed by
office); Moon v. Winfield, 368 F. Supp. 843, 845 (N.D. Ill. 1973) (defendant,
as Superintendant of Police, had duty and authority under General
Order of Police Dep't to make findings and impose penalties in officer-misconduct
cases; failure to do so actionable); see also Huey v. Barloga,
277 F. Supp. 864, 870 (N.D. Ill. 1967) (police have duty to protect citizens
and to keep peace); Aynes, supra note 45, at 84-93 (discussing
situations in which police have been found to have duty to protect); Note, supra
note 212, at 825-28 (same).
n279 See note 2 supra.
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Thus, the major concerns underlying the DeShaney Court's failure to find the
state liable for refusing to intervene do not arise in battered
women's cases. Finding a state liable under section 1983 for failure to enforce
its order of protection imposes a requirement of care that is not
unfair, excessively costly, or unmanageable. Rather, it limits liability to
a discrete set of instances in which the state, as required by DeShaney,
affirmatively has bound itself to provide continuous protection to identified
individuals.
IV
RETHINKING TRADITIONAL SUBSTANTIVE DUE PROCESS ANALYSIS IN THE CONTEXT OF BATTERED WOMEN
This Note has not undertaken to question the premises of DeShaney. However,
when examining the viability of substantive due process claims
by battered women after DeShaney, it seems suspiciously predictable that the
general view of the Constitution taken in that case n280 should
be so antithetical to the needs of battered women. This Part suggests that an
interesting inquiry might be made into the relationship between a
negative view of the Constitution and the difficulty battered women face in
establishing a constitutional right to state protection.
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n280 See DeShaney, 109 S. Ct. at 1003 ("The [Due Process] Clause is phrased
as a limitation on the State's power to act, not as a guarantee
of certain minimal levels of safety and security.").
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While courts may be reluctant to recognize a substantive due process right
to affirmative state protection, n281 an analysis of the reasons for
this reluctance is particularly relevant in the context of battered women. Courts
commonly have construed the Constitution as a "charter of
negative liberties [which] does not require the federal government or the state
[*1321] to provide services, even so elementary a service as
maintaining law and order." n282 As a result of this "hands off"
policy, however, battered women's orders of protection have been dramatically
under-enforced. n283
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n281 See text accompanying notes 32-33, 114 supra.
n282 Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982); see also Fox v.
Custis, 712 F.2d 84, 88 (4th Cir. 1983) ("there simply is 'no
constitutional right to be protected by the state against . . . criminals or
madmen'" (quoting Bowers, 686 F.2d at 618)); Currie, Positive and
Negative Constitutional Rights, 53 U. Chi. L. Rev. 864, 864-67 (1986) (discussing
various grounds for view that due process clause acts as a
prohibition upon oppressive state action rather than as an affirmative command
for state benefits).
n283 See C. Gillespie, supra note 207, at 143-44; Finn, supra note 2, at 45;
Note, Legal Remedies, supra note 43, at 156-57; Note, supra note
49, at 788-89.
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The perception of the state as potentially oppressive and threatening to the
private, "free" world n284 reflects a vision of rugged individualism
which defines human beings as independent, autonomous, and self-sufficient.
n285 Problems are seen to arise when the individual is left alone,
but rather when human interaction occurs. n286 It has been argued frequently
that this "atomistic vision [of] autonomy and separation" n287 is
a typically "masculine perspective." n288 This notion of a masculine
view of the world is seen as grounded in both philosophical and
psychological theory. n289 The masculine perspective provides the dominant underlying
framework for modern jurisprudence n290 and is
characterized by an emphasis on justice defined in terms of rights. n291
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n284 See Soifer, supra note 227, at 1519.
n285 See Bandes, supra note 205, at 2314, 2317; Sherry, Civic Virtue and the
Feminine Voice in Constitutional Adjudication, 72 Va. L. Rev. 543,
544-45 (1986); Wald, supra note 205, at 263.
n286 See C. Gilligan, In A Different Voice 37-38 (1982) ("Thus rules,
by limiting interference, make life in a community safe, protecting autonomy
through reciprocity, extending the same consideration to others and self.").
n287 Sherry, supra note 285, at 544.
n288 See, e.g., Bender, A Lawyer's Primer on Feminist Theory and Tort, 38
J. Legal Educ. 3, 7-8 (1988); Minow, The Supreme Court, 1986 Term
-- Foreword: Justice Engendered, 101 Harv. L. Rev. 10, 61 n.242 (1987); Oren,
The State's Failure to Protect Children and Substantive Due
Process: DeShaney in Context, 68 N.C.L. Rev. 659, 710 (1990); Sherry, supra
note 285, at 544; cf. C. Gilligan, supra note 286, at 4-23
(dominant moral order grounded upon masculine perspective of separation, autonomy,
and individuation).
n289 See Whitbeck, A Different Reality: Feminist Ontology, in Women, Knowledge,
and Reality 53-58 (A. Garry & M. Pearsall eds. 1989) (using
psychological theory to reveal features of "[m]asculine dualist ontology").
n290 "Because the masculine perspective has been the dominant -- and
virtually the sole -- influence on the legal and political structure, that
structure is bound to reflect a more masculine or liberal emphasis on individualism
over community." Sherry, supra note 285, at 544.
n291 See Schneider, The Dialectic of Rights and Politics: Perspectives from
the Women's Movement, 61 N.Y.U. L. Rev. 589, 597 (1986).
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the masculine perspective is typically posed against its "feminine"
n292 counterpart. n293 In contrast to the male ethos of separation and
[*1322] individualism, the feminine perspective tends to "see[] a world
comprised of relationships rather than of people standing alone." n294
Mutual obligation, rather than rights as against others, is valued. A "feminine
perspective," or a more communitarian view, which places higher
value on care and responsibility to others, n295 would be more receptive to
the needs of battered women and less reluctant to find that it is
the state's duty to provide for those needs. n296 "While an ethic of justice
proceeds from the promise of equality -- that everyone should be
treated the same -- an ethic of care rests on the premise of nonviolence --
that no one should be hurt." n297
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n292 But see C. MacKinnon, Toward a Feminist Theory of the State 51-52 (1989)
(arguing that what is often perceived as "women's" moral
reasoning has merely been attributed to women by the male establishment).
n293 See generally West, Jurisprudence and Gender, 55 U. Chi. L. Rev. 1 (1988)
(contrasting "masculine" jurisprudence, premised on "separation
thesis," with "feminist" jurisprudence, premised on "connection
thesis").
n294 C. Gilligan, supra note 286, at 29.
n295 See Bandes, supra note 205, at 2346-47; Bender, supra note 288, at 11-12,
28-30; Minow, supra note 288, at 61 n.242; Sherry, supra
note 285, at 590, 609-11.
n296 See Bender, supra note 288, at 33-36.
n297 C. Gilligan, supra note 286, at 174.
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From the perspective of a battered woman, it is particularly inappropriate
to use a standard of individualism to determine when the state must
intervene to protect. Under that masculine standard, battered women are left
largely, if not totally, without effective legal remedies. n298 The
idea that individuals are autonomous and should be "left alone" by
the state is of no relevance to those members of society who depend for
their safety and well-being upon the very state involvement which courts typically
refer to as oppressive. n299 The "hands off" view effectively
abets the batterer, who maintains control and autonomy in his personal life,
and turns a deaf ear to the battered woman, who is often
completely without self-help options. n300 If this is the result of the masculine
perspective, its value should be reconsidered in the context of
battered women's claims that the state has a duty to protect them. In recognizing
the state's obligation to protect battered women, an "ethic
of care" would not oppress them; rather, it could save them.
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n298 See R. Dobash & R. Dobash, Violence Against Wives: A Case Against
the Patriarchy 6-7 (1979); C. Gillespie, supra note 207, at 12-13;
Bender, supra note 288, at 7-8; Oren, supra note 288, at 710; see also L. Bowker,
Beating Wife-Beating 93-94 (1983) (battered women
confront masculine, "old-boy" network in legal system).
n299 See text accompanying notes 32-33 supra.
n300 See note 205 supra; see also A. Browne, supra note 205, at 109-30 (discussing
futility of most of battered women's non-judicial
"options"); W. Stacey & A. Shupe, supra note 207, at 102-31 (same).
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CONCLUSION
DeShaney v. Winnebago County Department of Social Services dealt a harsh blow
to potential section 1983 claimants alleging substantive due
[*1323] process violations by narrowing the situations in which such claims
may be brought. Although at first blush the Court's strong
language and narrow examples of situations in which a state duty to protect
may be found seem to indicate the majority's intention to fashion
sweeping limitations on substantive due process actions, a closer reading of
the case shows that the scope of its holding is limited by its
specific facts. Although battered women's substantive due process claims may
be seen to fall within the general ambit of claims contemplated
by the DeShaney Court, they are distinguishable in important ways from the DeShaney
situation.
The crucial difference between claimants like Joshua DeShaney and battered
women is the level of clear, official state action involved in the
two types of cases. In DeShaney, the Court found that the harm caused was entirely
a result of private interaction in which the state played
no determinative part. Since the state has no general constitutional duty to
intervene to protect citizens from harming each other, it had no
duty to intervene to prevent this particular private harm. In battered women's
cases, however, the state undeniably intervenes by granting an
order of protection.
It is starkly clear that a battered woman with an order of protection is not
an individual who is able to protect herself through nonviolent means
without the help of the state; the fact that the state has stepped in and issued
an order of protection evidences its acknowledgement that the
battered woman is both dependent upon and entitled to state assistance. Indeed,
the order of protection itself tightens the relationship
between the state and the battered woman.
The order of protection represents involvement by state entities -- namely,
the courts and the police -- which do not normally intervene in the
lives of private citizens to provide official, prolonged protection from private
harms. As distinguished from a DeShaney-type scenario, there is no
concern that these entities will tread improperly on the toes of social welfare
agencies in the exercise of their discretionary functions. Likewise,
there is no cause for concern that it will be impossible to delineate the kinds
of situations giving rise to state liability. To impose a constitutional
duty upon the state to follow up on its official promises of protection is simply
to recognize that, when the state chooses to act and thereby
affects the life of a citizen in a potentially detrimental way, it assumes a
duty to complete its action through enforcement.