Wednesday, August 26, 2009

Domestic violence victim may sue callous police officers

Michelle Okin was a lawyer in Orange County whose boyfriend, Sears, repeatedly kicked the hell out of her. She complained to the police about this domestic violence, but the police did not take her complaints seriously. In fact, although Sears told the police that "he smacked Okin around and could not stop himself from behaving in this manner," the police implicitly but affirmatively encouraged Sears' behavior by discussing football with Sears in responding to her complaints and "repeatedly communicated to Sears that his violence would go unpunished." Does she have a constitutional claim against the police? Yes.

The case is Okin v. Cornwall on Hudson, decided on August 18. Who wouldn't sympathize with Okin? The police are there to protect the victims of domestic violence, not the perpetrators. But in a well-known case decided 20 years ago, DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), the Supreme Court held that the "state's failure to protect an individual against private violence does not constitute a violation of the Due Process Clause." That's right, the police are not always constitutionally required to help you. There are ways around this ruling, but, Lord, it's not easy. The Okin case gets around the DeShaney ruling.

First, the Court of Appeals has to deal with the morass of case law that has developed in the wake of DeShaney. That's probably one reason it took the Second Circuit more than a year to resolve this appeal. In Dwares v. City of New York, 985 F.3d 94 (2d Cir. 1993), the Court of Appeals said the due process clause may be violated when the police affirmatively create or increase the risk of private violence, such as when they aid or abet the private actor's violence against someone else. While Okin does not show that the police affirmatively enhanced the risk of violence by making explicit assurances to Sears that he could get away with it, the Second Circuit's decisions over the years also stand for the proposition that "the affirmative conduct of a government official may give rise to an actionable due process violation if it communicates, explicitly or implicitly, official sanction of private violence." This is how Okin wins the appeal (the trial court dismissed her case) and gets a jury trial. As the Second Circuit (Pooler and Straub) holds:

A reasonable factfinder ... could infer that defendants' actions, such as discussing football with Sears during their response to Okin's complaint that he had beaten and tried to choke her, 'plainly transmitted the message that what he did was permissible and would not cause him problems with authorities.' Moreover, the evidence suggests that the defendants repeatedly communicated with Sears that his violence would go unpunished, as when Sears told Williams that he could not 'help it sometimes when he smacks Michelle Okin around' and Williams made no arrest, and also, on the numerous occasions that defendants responded to Okin's complaints without filing a domestic violence report, interviewing Sears, or making an arrest. A reasonable view of the evidence supports the inference that defendants' actions rise to the level of affirmative conduct that created or increased the risk of violence to the victim.

In other words, the defendant police officers enhanced the danger to Okin in conveying to Sears that he could continue to engage in domestic violence without punishment. This is a significant holding, as many cases fail when the plaintiff argues that the government violated the due process clause in failing to come to their assistance in the face of danger.

The Court of Appeals also reinstates Okin's substantive due process claim. The due process clause has been interpreted to prohibit governmental conduct that shocks the conscience. Claims under this theory are also difficult to sustain. Only the most outrageous governmental conduct suffices under the substantive due process rule. Okin satisfies this standard, the Second Circuit holds, because defendants' affirmative creation/enhancement of the risk of further domestic violence to Okin shocks the contemporary conscience. As the Court of Appeals observes, "the serious and unique risks and concerns of a domestic violence situation are well known and well documented." The officers knew better than to enhance the danger to Okin, the Court reasons. As I read the opinion, Sears could have killed this woman.

Finally, the Court of Appeals resolves the qualified immunity question. Public officials are immune from suit if their alleged misconduct is objectively reasonable even if, in hindsight, their conduct was illegal or misguided. This form of immunity gives special protection to police officers who are not expected to master the nuances of the law and have to act on a moment's notice in handling difficult problems on the street and elsewhere. But officers have no immunity if their conduct is objectively unreasonable in light of existing case law. Under the Dwares case that I mentioned earlier, the officers knew "that a police officer can violate a person's due process rights by affirmatively creating or increasing the risk of private violence" against the plaintiff. In Dwares, the police told some skinheads that their violence against another person would not be stopped. The Okin case is close enough to Dwares that the officers should have known that they were violating Okin's rights under the Constitution.

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