"Every 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).

This statute, enacted in 1871, was designed to create a private, civil cause of action for those persons whose constitutional rights are violated by state actors. In order to state a §1983 claim, a plaintiff must point to a specific right granted by the Constitution or state laws. Female victims of domestic violence have brought §1983 claims mainly asserting that police have caused them to be subjected to the deprivation of rights granted to them under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Some plaintiffs also assert §1983 claims based on specific state laws. A defendant may escape §1983 liability under the principle of qualified immunity, which shields state actors from civil liability unless their actions violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818. As we will see, the question of whether constitutional rights are clearly established at the time of official contact between the plaintiff and defendant is an extremely important one in the arena of police failure to protect domestic violence victims. The next two sections provide greater details about due process, equal protection and state law claims.

***

The Due Process Clause of the Fourteenth Amendment states: "[n]o state shall . . . deprive any person of life, liberty, or property, without due process of law." [FN27] Battered women may bring substantive due process claims under 42 U.S.C. s 1983, which provides private citizens with a federal remedy when state officers deprive individuals of their constitutional rights. Battered women's section 1983 claims typically allege that the failure of the police to intervene in domestic violence situations resulted in a liberty deprivation. In order to establish a section 1983 claim, "a plaintiff must show (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a constitutional right." [FN28] The actions of police officers clearly constitute state action, and therefore the first requirement for a section 1983 suit is satisfied. Thus, battered women's section 1983 claims usually hinge on the second element -- proving the deprivation of a constitutional right.

Prior to DeShaney v. Winnebago, [FN29] there was a lack of uniformity among the federal courts as to when the state had a duty to protect private individuals. There was no general duty to protect private citizens from harm and courts were unclear as to when such an affirmative obligation by the state might arise under the Due Process Clause. Generally, in battery cases courts looked to whether there was a special relationship between the plaintiff and the state, or between the batterer and the state, that created an affirmative duty on the part of the state to protect the victim. Courts considered the following factors as indicative of such a relationship: (1) a protective restraining order; (2) whether the state was aware of the danger faced by the victim (for example, through continual phone calls to the police or some other means of communication); (3) whether the batterer was in custody immediately prior to or at the time of his attack on the victim; and (4) whether the police affirmatively told the victim that she could rely on them for support. [FN30] The use of these factors in determining whether a special relationship existed is illustrated by pre- DeShaney cases. . . .

[Cases discussed in this section: Balistreri v. Pacifica Police Dept., 855 F. 2d 1421 (9^th Cir. 1988), Ketchum v. County of Alameda, 811 F.2d 1243 (9^th Cir. 1987), Jensen v. Conrad, 747 F.2d 185 (4^th Cir. 1984)]

B. DeShaney v. Winnebago County Department of Social Services [FN38]

The Winnebago County authorities first learned that Joshua DeShaney was a victim of child abuse when his father's second wife complained to the police. The Winnebago County Department of Social Services ("DSS") interviewed Joshua's father, but he denied the accusations, and the allegations of child abuse were not further pursued by DSS. In 1983, Joshua was admitted to the hospital with multiple bruises and abrasions. The doctor who examined him suspected child abuse and obtained a court order placing Joshua in temporary custody of the hospital. An ad hoc Child Protection Team meeting concluded that the evidence of child abuse was insufficient and Joshua was returned to his father's custody. [FN39]

One month later Joshua was back in the hospital. Based on suspicions of child abuse, a caseworker visited Joshua at home, but then failed to pursue the matter any further. In March 1984 Joshua was beaten so severely by his father that he fell into a life-threatening coma. Emergency brain surgery revealed that Joshua had a number of hemorrhages caused by injuries to his head. He suffered severe brain damage and was expected to spend the rest of his life confined to an institution. [FN40] Joshua's father was finally convicted of child abuse. His mother brought suit against DSS under 42 U.S.C. s 1983, claiming that Joshua was denied liberty without due process of law because DSS failed to intervene and protect him from his father's abuse. [FN41]

The Supreme Court held that the defendant's failure to adequately protect Joshua from his father's abuse did not violate Joshua's rights under the Due Process Clause. [FN42] The Court distinguished between negative and positive rights. The Court classified the Due Process Clause as a negative right, meaning that the Due Process Clause forbids the state itself from depriving individuals of life, liberty, or property without due process of law, but does not impose an affirmative obligation on the state to ensure that those interests are not harmed through other means. In contrast, if the Due Process Clause were a positive right, the state would have an affirmative obligation to guarantee certain minimal levels of safety and security; the state would be required to protect the life, liberty, and property of its citizens against invasion by private actors as well as by its own actions. [FN43] The Court held that the Due Process Clause is a limitation upon state power, not a guarantee of minimal safety or protection from private individuals. "[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." [FN44]

The Court rejected the plaintiff 's argument that an affirmative duty to protect Joshua arose out of a special relationship created or assumed by the state because of its awareness that Joshua was in danger. No special relationship existed, according to the Court, because although the state was aware of the dangers that Joshua faced, it played no part in increasing his danger or acting in any way to render Joshua more vulnerable. The Court also focused upon the fact that the state placed Joshua in no worse a position than if the state had not acted at all. [FN45] "[T]he State does not become the permanent guarantor of an individual's safety by having once offered him shelter." [FN46]

However, the Court did not go so far as to say that the Due Process Clause never imposes a duty upon the state to protect individuals. "It is true that in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals." [FN47] The Court explained that the state is required, for example, to provide adequate medical care to incarcerated prisoners because a prisoner is unable, by deprivation of his liberty, to care for himself. When the state holds a person in custody against his or her will, the Constitution imposes a duty to assume responsibility for the person's safety and general well-being. [FN48] "Had the State by the affirmative exercise of its power removed Joshua [DeShaney] . . . and placed him in a foster home[,] . . . we might have a situation sufficiently analogous to incarceration . . . to give rise to an affirmative duty to protect." [FN49]

The Court hinted that there are also some noncustodial situations in which an affirmative duty to protect may still arise. "[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 . . . ." [FN50] The Court further hinted that an affirmative duty to protect an individual *1305 may arise in situations in which the state's behavior increases the level of danger faced by the victim. "While the State may have been aware of the dangers that Joshua faced [,] . . . it played no part in their creation, nor did it do anything to render him more vulnerable to them." [FN51] "[I]t placed him in no worse position than that in which he would have been had it not acted at all." [FN52] . . .

DeShaney severely limited the situations in which a battered woman can claim that she experienced a liberty deprivation as a result of inadequate police protection. Police awareness that a victim of domestic violence faces danger is no longer enough to trigger an affirmative duty to protect. After DeShaney, there are only two situations in which a battered woman can bring a due process claim against the police. First, if the police in some way create or increase the danger faced by the victim, they could be held liable for breach of an affirmative duty to protect. Second, if the state were to restrain the personal liberty of a victim of domestic violence by taking her into custody, this too would require the state to provide protection because the state's actions would inhibit the victim's ability to protect herself. These appear to be the only situations in which the state would be required to affirmatively protect private individuals after DeShaney. . . .

[Cases discussed in this section: Balistreri, 855 F.2d 1421, amended and superseded by 901 F.2d 6969 (9^th Cir. 1990), Salas v. Carpenter, 980 F.2d 299 (5^th Cir. 1992)]

Although the Balistreri and Salas courts were not receptive to due process claims, other courts have remained open to the possibility that the Due Process Clause is still a viable remedy for victims of domestic violence who seek redress for inadequate police protection. After DeShaney, battered women are still owed an affirmative duty of protection by the police under the Due Process Clause if the state acts to create or enhance the danger faced by a victim, or if a battered woman is in the custody of the state.

The state does in fact create or enhance the level of danger faced by battered women in a number of situations. First, when the police are phoned by a victim of domestic violence and they fail to question or arrest the batterer, a battered woman is placed in an increased level of danger because the police have validated her batterer's actions. Now the batterer not only will continue the battering, but is likely to do so with an increased vengeance because he is aware that he will not be held liable for his actions. [FN64] Second, when the police assure a battered woman that her batterer is in custody and will not be released, an affirmative requirement of protection can be placed on the state because the battered woman may change her course of action based on the state's reassurances. For example, a woman may return to work, which will place her in increased danger if the police release the batterer, as they often do. [FN65] False assurances by the police may also increase the level of danger to a battered woman because she may forgo alternative types of protection, such as staying with friends. Finally, the state enhances the level of danger faced by a battered woman when it grants her a protective order upon which she relies and which the state fails to enforce. Case law demonstrates each of these situations. . . .

[Cases discussed in this section: Pinder v. Commissioners of Cambridge, 821 F.Supp. 376 (D. Md. 1993), Freeman v. Ferguson, 911 F.2d 52 (8^th Cir. 1990), Wood v. Ostrander, 879 F.2d 583 (9^th Cir. 1989), cert. denied, 498 U.S. 938 (1990).]

The Equal Protection Clause of the Fourteenth Amendment states that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." [FN88]

Feminist scholars have persuasively argued that woman battering is not merely the violent behavior of a few mentally disturbed individual men, but is a graphic and explicit demonstration of men's domination over women. Woman battering is a violent manifestation of the patriarchal beliefs that men have the right to dominate, control, and rule over women, particularly when those women are, as wives or girlfriends, the "property" or "possession" of men. [FN89] The patriarchal belief that women are the possessions of their boyfriends and husbands is reflected in the attitude of police towards victims of domestic violence. The Equal Protection Clause is a viable alternative for victims of domestic violence who bring suit based upon inadequate police protection because victims of domestic violence are afforded a much lower level of protection than are other battery victims.

In order for a battered woman to bring an equal protection claim, two things must be proven. First, police unresponsiveness towards victims of domestic violence must constitute gender discrimination. Second, discriminatory intent on the part of the police must be proven. Police unresponsiveness towards victims of domestic violence does constitute gender discrimination because women comprise virtually the entire class of people who are harmed by a policy of affording less protection to victims of domestic violence. Discriminatory intent on the part of the police can be established in three ways. First, the enforcement of a facially neutral policy that results in extreme discriminatory effects upon a particular class of people implies discriminatory purpose. Second, police unresponsiveness to domestic violence disputes is based upon archaic, stereotypical notions of gender roles. Third, discriminatory intent can be proven by looking at an untraditional notion of intent -- unconscious sexism.

There are two types of gender discrimination, overt and covert. Overt gender discrimination occurs when a law or policy discriminates against women on its face, explicitly by its terms. With such a policy, discriminatory intent and discriminatory impact need not be proven. The policy is automatically subjected to intermediate scrutiny. In order to maintain the challenged policy, the government must show that the policy is substantially related to an important government interest. [FN90]

Overt discrimination is generally not at issue with lawsuits against the police in domestic violence situations because most police departments do not have an overt policy of providing less protection to victims of domestic violence. Inadequate protection is more likely the result of unspoken police policy and attitudes.

Covert gender discrimination occurs when a law or policy, although neutral on its face, is administered in a manner that disproportionately discriminates against women. Such policies are not subjected to intermediate scrutiny unless the plaintiff can prove discriminatory purpose or intent on the part of the government. If the plaintiff is unable to prove discriminatory intent, the policy is subjected to the rational basis test which places a very small burden of justification upon the government. The government need only show that the policy is rationally related to a legitimate government interest. [FN91] Covert discrimination is usually the type of discrimination at issue with equal protection challenges to police unresponsiveness by battered women.

In an equal protection challenge, the first step is to compare the two groups that are being treated unequally. There are three possible groups to compare in the domestic violence context. First, one could try to compare the treatment of battered women by police to the treatment of battered men by police. However, this comparison is meaningless because battered men are a virtually nonexistent category. Second, one could try to compare the treatment by police of spouse abuse victims to the treatment by police of other battery victims. However, this comparison is insufficient because it results not in a claim of gender discrimination, but in a marital status comparison. The comparison becomes one of marital status because the focus is on the marital relationship between the batterer and the victim, instead of on the gender of the victim. This comparison is underinclusive because it fails to include victims of domestic violence who are not married to their batterers. Finally, one could compare the treatment by police of victims of domestic violence to the treatment by police of other battery victims. This is the best classification scheme for an equal protection claim because it properly defines the problem -- that only women, whether single or married, are the victims of domestic violence, and that they are afforded less protection by police than are all other battery victims.

However, in order to make out a valid equal protection claim, the comparison groups must satisfy the classification scheme requirements of Geduldig v. Aiello, Personnel Administrator of Massachusetts v. Feeney, and Bray v. Alexandria Women's Health Clinic. This line of cases holds that an equal protection claim is not valid when members of the class discriminated against are also members of the class to which it is being compared. An analysis of the case law will help to define this requirement and illustrate why it creates a potential problem for battered women who bring equal protection suits against the police. . . .

[Detailed discussion of these cases and why they are a problem.]

[Domestic violence cases discussed in this section: Balistreri, 901 F.2d 696, Pinder, 821 F.Supp. 376, Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn. 1984)]

Balistreri, Pinder, and Thurman illustrate that police attitudes towards victims of domestic violence can constitute gender discrimination. However, in order to make out a successful equal protection claim, battered women must also prove discriminatory intent on the part of the police.

I propose three ways in which discriminatory intent can be established in domestic violence cases. First, according to Yick Wo v. Hopkins [FN116] and its progeny, the enforcement of a facially neutral policy that results in extreme discriminatory effects can imply discriminatory intent. Second, police unresponsiveness to domestic violence disputes is based on archaic, stereotypical notions of gender roles, and this proves discriminatory intent. Third, discriminatory intent on the part of the police is based to a great extent on unconscious sexism, and therefore other factors beyond traditional notions of intent must be examined.

[The three ways are then examined in detail.]

After DeShaney, the Due Process Clause is no longer an adequate remedy for battered women who bring suit based upon inadequate police protection. However, the Equal Protection Clause is a viable remedy. The police policy of affording battered women less protection than other battery victims harms only women and therefore constitutes gender discrimination. The Geduldig line of cases, holding that an equal protection claim is not valid when members of the class discriminated against are also members of the class to which it is being compared, is based on flawed logic and should be overruled. Moreover, Geduldig has been very limited in its application and may not apply to battered women's equal protection claims.

Discriminatory intent on the part of the police can be established in three ways. First, the enforcement of a facially neutral policy that severely discriminates against a particular class of people can imply discriminatory purpose. Police policies of affording battered women less protection than other battery victims result in extreme discriminatory effects to women because women comprise the entire class of people who are harmed. The result is that domestic violence is very common and severe, and often results in death. Second, discriminatory intent can be proven by analyzing the archaic, stereotypical notions behind police policies of providing less protection to battered women. Such police policies are based on outdated patriarchal notions. They are derogatory and condescending towards women and establish the basis for discriminatory purpose. Third, discriminatory purpose can be established by examining unconscious sexism and the "cultural meaning" behind police policies.

Women have a right to equal protection by the police. When a battery occurs between two people who are intimately involved, it does not change the fact that a crime has occurred, the victim has been harmed, and the batterer should be arrested and held accountable for his actions. Until the police take crimes against battered women seriously, domestic violence will continue to exist, and sexist, patriarchal notions regarding gender relations will remain a part of our society.

[FN4]. National Clearinghouse for the Defense of Battered Women, Statistics Packet 43 (1990) (unpublished manuscript on file with author) [hereinafter Statistics] (citing David Adams, Identifying the Assaultive Husband in Court: You Be the Judge, 33 Boston B. J. 23 (1989)).

[FN27]. U.S. Const. amend. XIV, s 1.

[FN28]. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

[FN38]. 489 U.S. 189 (1989).

[FN39]. Id. at 192.

[FN40]. Id. at 193.

[FN41]. Id.

[FN42]. Id. at 203.

[FN43]. Id. at 195.

[FN44]. Id.

[FN45]. Id. at 201.

[FN46]. Id.

[FN47]. Id. at 198.

[FN48]. Id. at 199 -200.

[FN49]. Id. at 201 n.9.

[FN50]. Id. at 200 (emphasis added).

[FN51]. See supra note 45 and accompanying text.

[FN52]. Id. at 201.

[FN64]. See Statistics, supra note 4, at 69 -70 (citing Walker, supra note 21, at 63).

[FN65]. Pinder v. Commissioners of Cambridge, 821 F. Supp. 376, 396 (D. Md. 1993).

[FN88]. U.S. Const. amend. XIV, s 1.

[FN89]. Amy Eppler, Note, Battered Women and the Equal Protection Clause: Will the Constitution Help Them When the Police Won't?, 95 Yale L.J. 788, 790 n.14 (1986).

[FN90]. See Craig v. Boren, 429 U.S. 190 (1976); Frontiero v. Richardson, 411 U.S. 677 (1973).

[FN91]. Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 274 (1979); Washington v. Davis, 426 U.S. 229, 246 (1976).

[FN116]. 118 U.S. 356 (1886).

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"When presented with a plaintiff seeking to establish the liability of a governmental entity for the failure of its police department to provide sufficient protection, the courts in many jurisdictions have posited that in the absence of as contrary statute, such an entity is not liable for injured caused by its negligence in the exercise of "governmental" functions. However, a number of cases have held that such governmental immunity ceases to exist where a special relationship exists between the injured party and the governmental entity, and a question has arisen in a number of cases as to the liability of particular government bodies for the failure of the police to properly protect a threatened individual. The results in these cases vary greatly, with the courts being divided between those which are willing to permit the possibility of governmental tort liability for failure of the police to protect a threatened individual, and those which hold that no such liability exists. The facts in these cases are vital to the decision, for unless the court can find some circumstance to set the plaintiff apart from the general public as deserving of special, personal attention, most courts seem to be of the opinion that no governmental liability can result."