June 21, 2011
John Stone, Senior Attorney, National Legal Research Group
As a rule, the State's failure to protect an individual from private violence does not amount to a violation of the Due Process Clause of the Fourteenth Amendment as a deprivation of life or of a liberty interest. See DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197 (1989) (State owed no duty to child whose abuse it was investigating to protect him from beating by his father, despite claim that special relationship existed between the child and the State). The rationale for this principle is that the duty owed by the Government, especially in the realm of law enforcement, is to the public at large rather than to any particular individual.
An exception to this general rule exists where public officials have in some way assisted in creating or increasing the danger to the victim. For example, repeated and sustained inaction by Government officials in the face of potential acts of violence might constitute prior assurances to an offender that rise to the level of an affirmative condoning of private violence such as would amount to a violation of the Due Process Clause of the Fourteenth Amendment, even if there is no explicit approval or encouragement. In other words, under the right set of facts, Government officials can commit a substantive due process violation by implicit encouragement of the offender's actions.
In a recent tragic case in which both the perpetrator of violence and his victim died, a federal district court denied a motion to dismiss claims against governmental defendants brought under 42 U.S.C. § 1983, based on a violation of the victim's right to substantive due process. Pearce v. Estate of Longo, No. 6:10-CV-1569, 2011 WL 691377 (N.D.N.Y. Mar. 1, 2011). In Pearce, the connection between the Government and the "private violence" was present because the perpetrator was a city police officer who had had a history of verbally and physically abusing his wife and young children. More than once, the husband, service revolver in hand and in the presence of his wife and/or children, had threatened to kill himself and his family.
Despite having been discouraged by the husband's superiors at the police department from reporting the abusive treatment that she and her children were suffering on the ground that it could hurt the family's finances if the husband were to be disciplined, the wife had reported the abuse after the most threatening incidents. In response, a supervisor had acknowledged that the husband was "not okay," assured the wife that the police department was "all over this," and told her that the department would take away the husband's guns and otherwise protect her and her children. At about this time, the husband was disciplined for another incident, in which he had pointed his gun at a woman while he was working as a security guard at a school.
At least one fellow officer did urge the chief of police to confiscate the husband's weapons. The plea fell on deaf ears. In fact, the chief, a close friend of the husband's, ordered that the husband be permitted to keep his guns and remain on duty. The tragic end came soon thereafter. On the same day that the wife had been awarded exclusive possession of the family home in divorce proceedings, the husband, while on duty, entered the home and fatally stabbed his wife and then himself. Their eight-year-old son discovered the terrible scene when he returned home from school.
The court in Pearce found that when the husband police officer killed his wife, he had not been acting "under color of state law" within the meaning of § 1983, as he was not at that time performing police duties or using his powers as a police officer. However, the court ruled that the effect of this finding was to defeat only the claims brought under the Fourth and Eighth Amendments, not the due process claim brought against the City defendants under the Fourteenth Amendment.
Individual defendants against whom the § 1983 claim survived included a supervisor of the husband police officer, the chief of police, and the mayor of the City. The allegations against the supervisor—that he had been aware of his fellow officer's ongoing abuse and threatening behavior toward the wife, that he had discouraged the wife from making reports or seeking an order of protection, and that he had failed to discipline or suspend the officer, confiscate the officer's guns, or have the officer's mental condition evaluatedCall supported the claim against the supervisor under the "State-created danger" theory. Similarly, the allegations against the police chief—that he had had direct knowledge of his police officer's ongoing and escalating abusive behavior toward the wife, that he had known that the officer had been accused of wrongly pointing a loaded weapon at a citizen, that at least one of the chief's subordinates had verbalized concerns about the officer and had urged the confiscating of the officer's guns, and that the chief had done nothing in response—established a causal link between the chief's conduct and the officer's murder of his wife.
As for the mayor, whose office might typically be considered too remote from such an incident to warrant personal liability, the court found enough of a connection to keep him as a defendant. It was alleged that the mayor had surreptitiously and improperly appointed as chief of police his close friend, who had then allegedly inadequately handled the reports that a police officer was abusing his wife. By these actions, reasoned the court, the mayor had implicated himself in the policies and customs that ultimately led to the deprivation of the wife's civil rights.
It is settled law that even when municipal employees or officials are found to have violated federal constitutional rights, the municipality for whom they were then working is not vicariously liable under § 1983 for those violations. Nonetheless, under recognized theories for municipal liability, the plaintiff in Pearce was also found to have stated a viable claim against the City for liability to the estate of the murdered wife of the City's police officer. The allegations against the officer's supervisor and the police chief sufficiently supported a § 1983 claim against the City under both a "custom" and a "failure to train" theory, in that the City had "manifested deliberate indifference by failing to adequately train the police officers involved in this matter." Id. at *7-8.
