The following summaries are intended to familiarize the reader with the range of police inaction that has occurred in the past two decades. The fact patterns are copied verbatim from the cases. Only a brief synopsis of the legal aspects of the case is included at the end of each fact pattern since the principle point of this reading is to learn about police practices. A reader interested in the legal intricacies of the case should refer to the full text of the original cases, listed in the Optional Section of the Bibliography. The cases are arranged in chronological order.

"Josephine and Frank Sorichetti were married in 1949, and had three children, the youngest being Dina, who was born in 1969. It appears that Frank drank excessively and that the couple's relationship was quite stormy, with Frank becoming violent and abusive when under the influence of alcohol. In January 1975, Josephine obtained an order of protection in Family Court following a particularly violent incident in which her husband had threatened her and punched her in the chest so forcefully as to send her "flying across the room." The order recited that Frank was "forbidden to assault, menace, harass, endanger, threaten or act in a disorderly manner toward" Josephine. By June 1975, Frank's drinking and abusiveness had intensified. Consequently, Josephine moved out of their residence and took her own apartment. Upon her return in early July to obtain her personal belongings, Frank attacked her with a butcher knife, cutting her hand, which required suturing, and threatened to kill her and the children. The police were summoned from the 43rd precinct, but Frank had fled by the time they arrived. A second order of protection was issued by Family Court and a complaint filed in Criminal Court by Josephine. Frank was arrested by detectives from the 43rd precinct, but Josephine subsequently dropped both the Family Court and criminal charges based on Frank's promise to reform.

Frank's drinking and violent behavior continued, however, and in September 1975, Josephine served divorce papers on him. Frank became enraged and proceeded to destroy the contents of their apartment. He broke every piece of furniture, cut up clothes belonging to his wife and Dina, threw the food out of the refrigerator and bent every knife and fork. The police from the 43rd precinct were summoned, but they refused to arrest Frank because "he lived there."

Family Court entered a third order of protection that also ordered Frank Sorichetti to stay away from Josephine's home. During the ensuring months, Frank continued to harass his wife and daughter, following them in the mornings as they walked to Dina's school and threatening that they "were Sorichettis" and were going to "die Sorichettis", and that he was going to "bury them". Josephine reported these incidents to the 43rd precinct. Additionally, Frank created disturbances at Josephine's place of employment on a number of occasions with the result that she was discharged. On October 9, 1975, Frank was arrested by officers of the 43rd precinct for driving while intoxicated.

On November 6, 1975, Josephine and Frank appeared in Family Court where the order of protection was made final for one year. Included in the order was a provision granting Frank visitation privileges with his daughter each weekend from 10:00 a.m. Saturday until 6:00 p.m. Sunday. It was agreed that Dina would be picked up and dropped off at the 43rd precinct. As required by Family Court Act §168, the order also recited that: "[The] presentation of this Certificate to any Peace Officer shall constitute authority for said Peace Officer to take into custody the person charged with violating the terms of such Order of Protection and bring said person before this Court and otherwise, so far as lies within his power, to aid the Petitioner in securing the protection such Order was intended to afford."

On the following weekend, Josephine delivered Dina to her husband in front of the 43rd precinct at the appointed time. As he walked away with the child, Frank turned to Josephine and shouted, "You, I'm going to kill you." Pointing to his daughter, he said, "You see Dina; you better do the sign of the cross before this weekend is up." He then made the sign of the cross on himself. Josephine understood her husband's statements and actions to be a death threat, and she immediately entered the police station and reported the incident to the officer at the desk. She showed him the order of protection and reported that her husband had just threatened her and her child. She requested that the officer "pick up Dina and arrest Frank." She also reported the past history of violence inflicted by Frank. The officer told Josephine that because her husband had not "hurt her bodily -- did not touch her" there was nothing the police could do. Josephine then returned home.

At 5:30 p.m. the following day, Sunday, Josephine returned to the station house. She was distraught, agitated and crying. She approached the officer at the front desk and demanded that the police pick up Dina and arrest her husband who was then living with his sister some five minutes from the precinct. She showed the officer the order of protection and related the threats made the previous morning as well as the prior incidents and Frank's history of drinking and abusive behavior. The officer testified that he told Josephine that if "he didn't drop her off in a reasonable time, we would send a radio car out."

The officer referred Josephine to Lieutenant Leon Granello, to whom she detailed the prior events. He dismissed the protective order as "only a piece of paper" that "means nothing" and told Josephine to wait outside until 6:00. At 6:00 p.m., Josephine returned to the Lieutenant who told her, "why don't you wait a few minutes * * * Maybe he took her to a movie. He'll be back. Don't worry about it." Josephine made several similar requests, but each time was told "to just wait. We'll just wait." In the meantime, at about 5:20 or 5:30, Officer John Hobbie arrived at the station house. He recognized Josephine, who by then was hysterical, from prior incidents involving the Sorichettis. Specifically, just a few months previously, on June 28, 1975, Hobbie had intervened in an altercation in which Frank, while intoxicated and being abusive, had tried to pull Dina away from a babysitter, cursing and saying, "if I don't have her, the mother shouldn't have her." Hobbie had taken Frank, Dina and the babysitter to the 43rd precinct, where a decision was made not to let Frank have the child. Frank had started cursing and became loud and abusive. He calmed down somewhat when threatened with removal from the station house, and left when told that the police were holding the child until her mother arrived. In a second incident on October 9, 1975. Officer Hobbie transferred Frank to a hospital for detoxification following Frank's arrest by officer's of the 43rd precinct for driving while intoxicated.

After speaking with Josephine on November 9, 1975, Officer Hobbie informed Lieutenant Granello of his prior experiences with Frank. He told the Lieutenant that Sorichetti was a "very violent man" and that Dina was "petrified" of him. Officer Hobbie recommended that a patrol car be sent to Sorichetti's home. Lieutenant Granello rejected this suggestion, contending initially that no patrol cars were available and later that "not enough time [had] gone by."

At 6:30, Lieutenant Granello suggested that Josephine call home to see if Dina had been dropped off there. She did so and was informed that the child was not there. She continued to plead that the officer take immediate action. The Lieutenant again told Josephine "Let's just wait". At 7:00, the Lieutenant told Josephine to leave her phone number and to go home, and that he would call her if Sorichetti showed up. She did as suggested.

At about the same time, Frank Sorichetti's sister entered her apartment and found him passed out on the floor with an empty whiskey bottle and pill bottle nearby. The woman also found Dina, who was severely injured. Between 6:55 and 7:00 p.m., Sorichetti had attacked the infant repeatedly with a fork, a knife and a screwdriver and had attempted to saw off her leg. Police from the 43rd precinct, responding to a 911 call, arrived within five minutes and rushed the child, who was in a coma, to the hospital. The infant plaintiff was hospitalized for 40 days and remains permanently disabled. Frank Sorichetti was convicted of attempted murder, and is currently serving a prison sentence."

The New York Court of Appeals held that "a special relationship existed between the City and Dina Sorichetti which arose out of (1) the order of protection; (2) the police department's knowledge of Frank Sorichetti's violent history, gained through and verified both by its actual dealings with him, the existence of the order of protection, and its knowledge of the specific situation in which the infant had been placed; (3) its response to Josephine Sorichetti's pleas for assistance on the day of the assault; and (4) Mrs. Sorichetti's reasonable expectation of police protection." In addition, the court held that Ms. Sorichetti and her daughter were entitled to recover damages because there was sufficient evidence that the police department breached its duty of care, which was a proximate cause of the baby’s injuries. After a modification of the original jury verdict of $3,040,000, Ms. Sorichetti and her daughter were awarded $2,000,000.

"On February 13, 1982, Balistreri was severely beaten by her husband. The Pacifica police officers who responded to her call for assistance removed the husband from the home, but refused to place him under arrest, and were "rude, insulting and unsympathetic" toward Mrs. Balistreri. One of the officers stated that Mrs. Balistreri deserved the beating. Although Balistreri was injured seriously enough to require treatment for injuries to her nose, mouth, eyes, teeth and abdomen, the officers did not offer Balistreri medical assistance.

Sometime after the incident, an unidentified Pacifica police officer pressured Balistreri into agreeing not to press charges against her husband.

Throughout 1982, Balistreri continually complained to the Pacifica police of instances of vandalism and of receiving hundreds of harassing phone calls. She named her husband, from whom she is now divorced, as the suspected culprit.

In November 1982, Balistreri obtained a restraining order which enjoined her former husband from "harassing, annoying or having any contact with her." Subsequent to the service of this order, Balistreri's former husband crashed his car into her garage, and Balistreri immediately called the police, who arrived at the scene but stated that they would not arrest the husband or investigate the incident. During the remainder of 1982, Balistreri reported additional acts of phone harassment and vandalism, but the police "received her complaints with ridicule," denied that any restraining order was on file, ignored her requests for protection and investigation, and on one occasion hung up on her when she called to report an instance of vandalism.

On March 27, 1983, a firebomb was thrown through the window of Balistreri's house, causing fire damage and emotional anguish to Balistreri. The police took 45 minutes to respond to Balistreri's "911" call. Although police asked Balistreri's husband a few questions, they determined he was not responsible for the act; Balistreri complained that the investigation was inadequate, to which the police responded that she should either move elsewhere or hire a private investigator.

Throughout 1983-85, Balistreri was continually subjected to telephone harassment and vandalism. Balistreri contacted Pacific Bell to [**4] "trace" the calls. Pacific Bell reported that some of these calls were traced to the former husband's family, but the police refused to act on this information.

Balistreri, represented by counsel, filed a complaint alleging that these acts violated her constitutional rights and caused her to suffer physical injuries, a bleeding ulcer, and emotional distress. The complaint asserted that the defendant police officers had deprived Balistreri of due process and equal protection of the law, and violated her rights to be free of excessive use of force and unreasonable searches and seizures by police. The district court dismissed the complaint with prejudice. After the dismissal, Balistreri ceased to be represented by counsel and was granted leave to proceed in forma pauperis."

In 1988, the 9^th Circuit Court of Appeals held that a special relationship existed between Ms. Balistreri and the state since the police knew that Ms. Balistreri was in danger and the state affirmatively issued an restraining order. After the U.S. Supreme Court decided DeShaney v. Winnebago, however, the 9^th Circuit reversed itself and held that Ms. Balistreri failed to allege a special relationship between herself and the police. It also held that the district court erred in refusing to allow Ms. Balistreti to amend her equal protection claim, since the court could "conceive of facts" that would constitute an equal protection cause of action. The court commented that the police officers’ remarks "strongly suggest an intention to treat domestic abuse cases less seriously than other assaults, as well as an animus against abused women."

"At 2:30 a.m., on the morning of September 23, 1984, Trooper Ostrander pulled a car to the side of the road for driving with its high beams on. Ostrander determined that the driver, Robert Bell, was intoxicated and placed him under arrest. Ostrander called for a tow truck to have the car impounded, and returned to the car and removed the keys. Wood, who was sitting in the car, asked Ostrander how she would get home. Ostrander replied that he was sorry, but that Wood would have to get out of the car. These facts are not disputed. Wood claims that Ostrander simply returned to his patrol car and drove away. Ostrander claims that he offered to call a friend or family member who could give Wood a ride home, but that she declined the offer. Although Wood claims that she did not see any open business at the time Ostrander drove away, Ostrander claims that a Shell service station and a Seven-Eleven store were clearly visible and open for business. Ostrander further claims that Wood was picked up by an unknown driver before Ostrander drove away, although Bell and Wood dispute this.

Ostrander left Wood near a military reservation in the Parkland area of Pierce County, which has the highest aggravated crime rate in the county outside the City of Tacoma. The temperature was fifty degrees and Wood was wearing only a blouse and jeans. Wood alleges that after walking one-half block toward her home, which was five miles away, and having turned down rides offered by three or four strangers, she accepted a ride with an unknown man. The driver took Wood to a secluded area and raped her."

Legal Outcome

The district court granted Ostrander’s motion for summary judgment, holding that Ostrander owed no "affirmative constitutional duty of protection" to Wood. However, the 9^th Circuit of Appeals reversed, holding that Ostrander’s actions had "affirmatively placed the plaintiff in a position of danger. The court distinguished this case from DeShaney, on the basis that in DeShaney the state "played no part" in creating the dangers faced by Joshua DeShaney, while in this case there was state created danger.

"This action arises out of a shooting incident on June 30, 1985, in Schenectady, in which Joseph Raucci (hereafter "Mr. Raucci") injured Ms. Raucci, his estranged wife, and killed their six-year-old son Chad.

On March 12, 1985, the Rauccis entered into a separation agreement which granted custody of the couple's two children, Pamela and Chad, to Ms. Raucci. On May 13, Ms. Raucci appeared with Chad at the Rotterdam Police Department station and reported that Mr. Raucci earlier that evening had punched her and threatened to kill her. She pointed to a neck injury that resulted from the assault and sought the arrest of Mr. Raucci. She told the officer on duty, Sergeant David Bethmann, that she was legally separated from her husband. Bethmann suggested that she could either have Mr. Raucci arrested or get an order of protection. The next day, the Rauccis filed separate criminal complaints, charging each other with assault in the third degree. See N.Y. Penal Law § 120.00 (1), (2) (McKinney 1987). Both complaints were withdrawn after Ms. Raucci obtained a temporary order of protection from the Schenectady County Family Court. The order was converted into a permanent mutual order of protection on May 20. Shortly thereafter, Ms. Raucci notified the Rotterdam Police Department that she had the permanent order of protection and that her husband was persisting in his threats to kill her. She gave the police her address in anticipation of future problems.

Ms. Raucci returned to the Rotterdam Police on June 1 to report that Mr. Raucci had attempted to run her car off the road while she was driving with Chad earlier that day. She also reported that Mr. Raucci had been demanding that she let him have Chad. She requested, and received, a police patrol at her home that night. On June 10, she telephoned the police and told Deputy Chief Alfred DeCarlo that Mr. Raucci once again had threatened to kill her and had recently purchased a gun. She reminded DeCarlo that she had an order of protection and requested that her husband be arrested. According to Ms. Raucci, DeCarlo suggested that the police could "do more for [her] than . . . arrest [her] husband" and could train her to record her telephone conversations with Mr. Raucci to develop evidence against him. At DeCarlo's direction, she went to the Rotterdam Police station that evening, picked up the tape recorder, and received instruction on its use from Officer Wayne Calder, who was aware of her situation. Thereafter, Ms. Raucci was able to tape telephone conversations that included threats to kill her as well as admissions of ownership of a gun. On June 18, Ms. Raucci delivered the tapes to Calder, who played them in the absence of DeCarlo. Ms. Raucci testified that Calder told her that there was "plenty on the tape," but that he was not going to proceed until DeCarlo returned. Ms. Raucci telephoned the Rotterdam Police over the next two days in an attempt to locate DeCarlo, who was unavailable.

Ms. Raucci went to the Rotterdam Police station on Sunday, June 23, because Mr. Raucci had attempted to break into her apartment earlier that morning and threatened "to blow her head off." She signed an information charging Mr. Raucci with aggravated harassment by reason of his conduct of that day. See N.Y. Penal Law § 240.30 (McKinney 1989). DeCarlo told her that the police would arrest Raucci on Monday when a judge would be available for arraignment. When Ms. Raucci returned to her apartment, Mr. Raucci appeared in her parking lot and continued to threaten her. She called the police, and they arrested Mr. Raucci on the basis of the information signed earlier that day. As he was being arrested, Mr. Raucci asked the officers to contact Deputy Chief DeCarlo, Officer Calder, and Officer Robert DeCarlo, since they were his friends and knew about this marital dispute. He was arraigned the next day and released on bail of $500 by Justice Edward O'Connor of the Town of Rotterdam Justice Court. Justice O'Connor was not apprised of the existence or contents of the tapes or the circumstances in which they were obtained, nor, would it seem, was he aware of the entire history of the bitter dispute involving the Rauccis.

On June 28, DeCarlo called Ms. Raucci to tell her that Mr. Raucci had come to the police station with Chad earlier that day to deliver her car keys. She replied that she was continuing to receive telephone calls from her husband, who also had appeared and startled her in public places on two separate occasions during that week. When she asked him what he was doing with the tapes, DeCarlo said that "he was working on it." DeCarlo assured her that Mr. Raucci was only trying to break her psychologically and "in most cases like this what happened was the person usually turns the gun on themselves." DeCarlo told her that Mr. Raucci had been badgering Chad at the police station to tell the police about her male companion.

Two days later, Ms. Raucci was leaving for a trip to Lake George with Chad when she stopped to pick up her male companion, Mark Ference, at his home in Schenectady. Mr. Raucci, who had been following Ms. Raucci, stopped his car and waited as she proceeded to park her car. He then retrieved his rifle from his trunk. Mr. Raucci walked toward Ms. Raucci's car with the rifle and shot and wounded Ference as Ference approached Ms. Raucci's car. Chad screamed and jumped into Ms. Raucci's arms. Ms. Raucci pleaded with her estranged husband not to shoot because Chad was in the car. Nevertheless, Mr. Raucci shot inside the car, wounding Ms. Raucci and killing Chad."

The district court granted the defendants’ summary judgment motion regarding Ms. Raucci’s section 1983 due process claim (this decision was not appealed). The 2^nd Circuit Court of Appeals held that the evidence was sufficient to establish a special relationship between Ms. Raucci and Chad and the police department, which imposed a duty on the town to provide police protection. In New York, the elements of the special relationship are: (1) an assumption by the municipality of an affirmative duty to act on behalf of a person who is injured, (2) knowledge that inaction could lead to harm, (3) direct contact between the police and the injured person and (4) the injured person’s justifiable reliance on the police’s affirmative undertaking. The Court also held that the wrongful death award of $250,000 for Ms. Raucci’s six-year-old son was shockingly excessive, and ordered a new trial solely on damages unless Ms. Raucci accepted $100,000. Ms. Raucci’s jury award of $275,000 for her own personal injuries was not challenged.

"The following recitation of facts is therefore taken from the plaintiffs' complaint. At 4:30 a.m. a male intruder, Valentine, illegally entered the apartment of plaintiffs while they slept. Valentine entered Jane's bedroom and climbed on top of her, grabbing her clothing and touching her breasts and genital area. At this time, Valentine declared his intention to rape Jane and also threatened to kill her.

Jane's two minor children, Betty and John, were in the room during Valentine's attack of Jane. Afraid for the safety of her children, Jane pleaded with Valentine not to continue the attack with her children present. Valentine got off the bed and directed the children to leave. Valentine followed the children out of the bedroom, threatening to kill them.

Jane then made a break for the front door and Valentine caught her on the stairs leading from the apartment. Valentine and Jane fell down the stairs and Valentine then beat Jane and again threatened to kill her. Jane grabbed hold of the railing and would not let go. Valentine then left Jane and reentered the apartment where Betty and John remained, locking the door behind him. Jane unsuccessfully attempted to gain entry to the apartment by kicking and pushing the door.

Jane, clothed only in undergarments, then left the building screaming. Several neighbors, having heard the screams, dialed 911. Officer Giglio was the first to arrive at the scene. Officer Horka arrived a short time later and assumed a supervisory role.

Officer Horka asked Jane what had happened. Jane told him that there was a man in her apartment, and that the man had tried to rape her and had threatened to kill her and her children. Jane also told Officer Horka that her children were still in the apartment and she feared for their safety. Jane pleaded with Horka to break down the door and rescue her children. Several neighbors also pleaded with the officers to break down the door.

Officer Horka declined to break down the door, stating that he did not want to be responsible for the property damage. Jane repeatedly stated that she would pay for any damage and screamed that she herself would save her children. When Jane attempted to rescue her children, several defendant police officers ordered her to stay put and then physically restrained her. The plaintiffs' complaint also alleges that the defendant police officers prevented neighbors from breaking down the door. Instead of breaking down the door, an unknown defendant police officer called the landlord who resided in South Holland, Illinois, and requested a key.

Plaintiffs' complaint alleges that Officer Horka questioned Jane in a rude, demeaning and accusatory manner and asked inappropriate questions. Horka asked Jane: "Where is your husband?" "Do you know the guy?" "Why would you leave your children in the apartment if there was a strange man there?" "Why did you leave the apartment without a key?" Officer Horka also described Jane as "an hysterical woman" and stated that "this girl is freaking out." The complaint also alleges that Officer Horka stated that Jane was not coherent, while the neighbors could fully comprehend Jane's statements.

After questioning Jane, Officer Horka checked the front door and rang several apartment buzzers. Officer Horka and Officer Giglio then walked around the [*383] building allegedly checking Jane's windows and rear door. Plaintiffs' complaint claims the rear balcony sliding glass doors, 12 feet above ground level, were unlocked and ajar. In addition, plaintiffs' complaint alleges that the rear door of the building and the back door to Jane's apartment were unlocked.

Officer Horka ordered Officer Giglio to stay at the back door. Officer Horka then walked to the front of the building where he met Officer Surufka, who had just arrived at the scene. Officer Horka spoke by radio to his supervisor, Sergeant Targonski, who directed Horka to break down the door. Officer Beasley then arrived at the scene. Several paramedics arrived and told the officers that a "lock pick," a locksmith, and ladder were available for gaining entry into the apartment. Officers Horka, Giglio, Surufka and Beasley did not attempt to gain entry into Jane's apartment. Officers Beasley and Surufka tapped on windows and rang the doorbell to the apartment.

At approximately 5 a.m., Investigator Miller of the Calumet City police department arrived at the scene and interviewed Jane. Accompanied by several officers, Investigator Miller entered the apartment through the rear door of the building and the back door of the apartment, which were unlocked. When the officers arrived, they found Valentine raping Betty. From the time the officers arrived until Investigator Miller interceded, Valentine had repeatedly raped Betty and forced her to perform deviate sexual acts. Also during this time, Valentine choked and threatened John."

The Supreme Court of Illinois held: "[p]laintiffs' count alleging simple negligence towards Betty and John was properly dismissed by the trial court. Plaintiffs' allegations, however, support a cause of action on behalf of Betty and John for willful and wanton misconduct against Officer Horka and Calumet City. Plaintiffs' count brought on behalf of Jane alleging intentional infliction of emotional distress states a cause of action against Officer Horka and Calumet City. Plaintiffs' count alleging gender discrimination states a cause of action on behalf of Jane against Officer Horka in his personal capacity and Calumet City."

"The facts of this case are genuinely tragic. On the evening of March 10, 1989, Officer Johnson responded to a call reporting a domestic disturbance at the home of Carol Pinder. When he arrived at the scene, Johnson discovered that Pinder's [**3] former boyfriend, Don Pittman, had broken into her home. Pinder told Officer Johnson that when Pittman broke in, he was abusive and violent. He pushed her, punched her, and threw various objects at her. Pittman was also screaming and threatening both Pinder and her children, saying he would murder them all. A neighbor, Darnell Taylor, managed to subdue Pittman and restrain him until the police arrived.

Officer Johnson questioned Pittman, who was hostile and unresponsive. Johnson then placed Pittman under arrest. After confining Pittman in the squad car, Johnson returned to the house to speak with Pinder again. Pinder explained to Officer Johnson that Pittman had threatened her in the past, and that he had just been released from prison after being convicted of attempted arson at Pinder's residence some ten months earlier. She was naturally afraid for herself and her children, and wanted to know whether it would be safe for her to return to work that evening. Officer Johnson assured her that Pittman would be locked up overnight. He further indicated that Pinder had to wait until the next day to swear out a warrant against Pittman because a county commissioner would not be available [**4] to hear the charges before morning. Based on these assurances, Pinder returned to work.

That same evening, Johnson brought Pittman before Dorchester County Commissioner George Ames, Jr. for an initial appearance. Johnson only charged Pittman with trespassing and malicious destruction of property having a value of less than three hundred dollars, both of which are misdemeanor offenses. Consequently, Ames simply released Pittman on his own recognizance and warned him to stay away from Pinder's home.

Pittman did not heed this warning. Upon his release, he returned to Pinder's house and set fire to it. Pinder was still at work, but her three children were home asleep and died of smoke inhalation. Pittman was later arrested and charged with first degree murder. He was convicted and is currently serving three life sentences without possibility of parole."

In Pinder v. Commissioners of Cambridge, 821 F. Supp. 376 (1993) (Pinder I), a district court held that even after DeShaney, Ms. Pinder’s detrimental reliance on the police officer’s assurances may serve as a basis for asserting a due process claim. The court thus denied the city’s motion to dismiss the due process claim. However, in Pinder v. Johnson, 54 F.3d 1169 (1995) (Pinder II), the 4^th Circuit Court of Appeals reversed this judgment. It first stated that under the qualified immunity doctrine, an official cannot be found to have violated rights of which he could not have known. The court then engaged in a lengthy discussion of whether a due process right to affirmative protection was clearly established at the time of Ms. Pinder’s dealings with Officer Johnson, concluding that such a right was not established. The court then explains why such a right should not be established. For a good analysis of this case, see Melissa J. Seeds, "Note: Throwing out the Baby with the Bathwater: The Fourth Circuit Rejects a State Duty of Affirmative Protection in Pinder v. Johnson," 74 N.C.L. Rev. 1719 (June 1996) in this module’s Optional Reading section of the Bibliography.

Soto v. Flores, 103 F.3d 1056 (1^st Cir. 1997). [Procedural footnotes omitted.]

"We recite the facts in the light most favorable to the plaintiff, the party opposing summary judgment. Flor Maria Soto married Angel Rodriguez, nicknamed Rafi, in 1981. Rodriguez and Soto had two children: Sally was born in 1983, and Chayanne, a boy, in 1988. Approximately a year into their marriage, Rodriguez began to abuse Soto emotionally and physically. This abuse, often connected to Rodriguez's drinking, continued throughout their marriage. The abuse was apparent to family and friends. As one neighbor put it, "anyone who visited them could tell that [Soto] was an abused wife." Despite his constant mistreatment of Soto, Rodriguez never abused the children.

Rodriguez did gardening and vehicle repair work for the police officers at Palmer Police Station, a sub-station of the Rio Grande precinct. Rodriguez was friends with several of the officers from Palmer Station, including Luis Carrasquillo-Morales ("Carrasquillo") and defendant Carlos Flores-Moreira ("Flores"). Rodriguez visited the station almost daily. Many of the officers, when on patrol in the area, would visit the Rodriguez-Soto home for coffee or a drink. Flores and Rodriguez were particularly friendly; about once a week, during his patrol rounds, Flores would stop by the house for an hour's visit.

On Wednesday, April 17, 1991, Rodriguez struck Soto about her face and neck, bruising her, and called her insulting names. When Rodriguez fell drunkenly asleep, Soto gathered the children and went to her mother's house. Soto's mother, Hipolita Vega, convinced her to go to the police and file a complaint. In nine years of beatings, some of them worse than the one on April 17, Soto had never sought help because she believed that the police would do nothing, because she had nowhere to go, and because she was afraid of Rodriguez. Rodriguez had threatened her with a gun on several occasions and told her that he would kill her and other members of her family if she went to the police. Knowing that Rodriguez was friendly with the police, Soto feared that the police would do nothing except tell Rodriguez that she had complained.

On that night, despite her fear, Soto went with her mother and her children to the Palmer Police Station. When she arrived, she was met by Flores, who was the desk officer on duty. Flores could see that Soto was crying and marked with bruises, "pretty ugly hematomas." Soto explained that Rodriguez had beaten her. Flores then radioed for the patrol officers to come in and take her complaint, referring to Soto on the radio as "Rafi's wife" and saying that it was a Law 54 case. During the fifteen to twenty minutes that Soto and Flores waited for the patrol officers to arrive, Flores told Soto that he himself had domestic violence problems, and that his wife wanted him to be put in jail. He urged Soto to patch things up with Rodriguez. Soto responded by telling Flores that Rodriguez's beatings were too much to stand and that, as Flores knew, Rodriguez was a heavy drinker, who became violent when drunk. Soto told Flores about everything that Rodriguez had done and what he would do to her. Flores offered Soto the opportunity to stay overnight at the station.

Sergeant Orta, the supervisor, arrived, and Flores told him that Soto was "the lady with the Law 54 complaint." When the patrol officers, Carrasquillo and Jose Serrano, arrived, Flores said, "This is Rafi's wife," and told them that she was there on a Law 54 complaint. Carrasquillo took Soto into an interview room, three steps away from the desk at which Flores sat. Soto was nervous and crying. The door to the interview room remained open, and Flores listened to everything that was said in Soto's conversation with Carrasquillo.

In the interview room, Soto told Carrasquillo about Rodriguez's behavior, and showed him her bruises. Carrasquillo asked Soto whether she wanted Rodriguez jailed. Soto replied by explaining her situation to the officers. Specifically, she told Carrasquillo that Rodriguez had told her that if she put him in jail, he would get out quickly because his family had money and that he would then kill her. She told Carrasquillo that Rodriguez had told her that if she attempted to put him in jail, he would kill her mother and sisters so that she would go to the wake and he would then kill her there.

Having told the police officers about Rodriguez's threats, Soto asked them to do what was appropriate. Although Soto did not use the words "domestic violence complaint," she believed that by describing her situation to the officers she was initiating the complaint process. Carrasquillo wrote down everything she said during the interview, and Soto assumed that he was drafting a complaint against Rodriguez.

Soto's effort to get police assistance came a year and a half after a new law aimed at curbing domestic violence had gone into effect. In November 1989, the Puerto Rican legislature enacted one of the nation's most comprehensive domestic violence laws, the Domestic Abuse Prevention and Intervention Act, known popularly as "Law 54." In addition to defining criminal domestic violence broadly, Law 54 makes arrest of an abuser mandatory whenever an officer has grounds to believe that Law 54 has been violated. P.R. Laws Ann. tit. 8, §§ 631-635, 638 (Supp. 1995). Police officers are required to take all steps necessary to prevent abuse from recurring, including providing the complainant with information about social services and, if she expresses concern for her safety, with transportation to a safe place. Id. § 640. Law 54 also requires that police officers file a written report on all domestic violence incidents, whether or not any charges are ever filed. Id. § 641. The police superintendent is charged with establishing "norms to guarantee confidentiality with regard to the identity of the persons involved in incidents of domestic violence." Id. Implementing regulations issued by the superintendent of police detail the officer's responsibilities, and instruct that arrest determinations are not to be affected by irrelevant factors, including victim reluctance. Rules and Procedures to Attend to Domestic Violence Incidents, Puerto Rico Police General Order No. 86-26m (Rev. 1). The regulations explicitly state that police attempts at mediation or reconciliation shall not substitute for arrest. Id. at 4. The regulations require that domestic violence reports be kept confidential, in separate files, and that copies only be issued upon a court order. Id. at 19. These regulations explicitly recognize that:

Domestic violence . . . frequently ends in intra-family homicide and it affects all the components of the family, including the children.

Id. at 1.

Despite this legal framework, at the conclusion of his interview with Soto, Carrasquillo took no action. Carrasquillo did not tell Soto about the availability of battered women's shelters or about procedures for obtaining an order of protection. Nor did he prepare a domestic violence report. Instead, Carrasquillo wrote up an "Other Services Report," which falsely indicated that Soto had visited the police solely for advice relating to child custody. n3 Soto returned to Vega's house.

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n3 Soto contends that she signed a domestic violence report at the station that night and that the Other Services Report produced by the defense is an after-the-fact forgery, and part of a cover-up, which included pressure on Flores to commit perjury. Her claim of forgery is supported by the testimony of a handwriting expert, and Flores's testimony suggests that pressure was put on him.
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Carrasquillo discussed Soto's complaint with his supervisor, Sergeant Orta, that evening. When Sergeant Orta signed the Other Services Report he did so despite information that this was a Law 54 situation and that the men under his supervision were not doing what the law required. Sergeant Orta discussed the "Other Services" report with Flores. n4 Flores told him that Rodriguez and Soto had marital problems because Rodriguez was an alcoholic. Flores said he would talk to Rodriguez the next day.

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n4 A police department internal investigation followed the killings. On August 31, 1992, the examiner concluded that Carrasquillo and Sergeant Orta, the supervisor who signed the Other Services Report prepared by Carrasquillo, merited reprimands for failing to act pursuant to the norms established by Law 54. Neither Betancourt-Lebron nor Flores was a subject of that investigation, although Flores was interviewed regarding his knowledge of the events.
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Sometime the next day, April 18, Officer Flores, despite knowing of Rodriguez's threats to commit murder if Soto went to the police in an effort to jail him, went to the Rodriguez-Soto home and told Rodriguez about Soto's visit to the police station. That night, Rodriguez arrived at Vega's home, very upset. He told Vega and Glorivee Soto, Soto's sister, that "the boys" from the police station had told him that Soto wanted to put him in jail and that he would not allow that to happen. Vega managed to calm him and he left.

The next day, Friday, April 19, Rodriguez ran into the plaintiff at a local tire shop. Rodriguez, visibly upset, told plaintiff that Officer Flores had been to their home and had told him that Soto was going to throw him in jail. Soto, fearing violence, denied it. She tried to calm Rodriguez down, but Rodriguez kept repeating that Flores had told him she wanted him jailed.

On Saturday, the twentieth of April, Rodriguez again came to Vega's home and invited Soto to the beach. Soto refused to go, but the children, excited at the rare prospect of an outing with their father, got into the car. Rodriguez did not bring the children back that day as he had promised. Soto went twice to try to pick them up, but both times Rodriguez refused to give the children to her.

Finally, at 8:00 p.m. on April 21, Soto, mindful that the next day was a school day, went back to the family home determined to get the children. As she stood on the lawn, Soto heard both children tell Rodriguez that she had arrived. Sally shouted, "Run, Mommy, please run!" Rodriguez then shot his son in the forehead. Soto heard Sally say to her father, "Daddy, no, Daddy, no." Rodriguez then shot Sally through her mouth. Soto heard a third shot. Rodriguez had killed himself. When the police, including Carrasquillo and Serrano, arrived, Rodriguez was dead. The children were still alive and the police rushed them to the hospital. Both children were dead on arrival.

On the wall of the room where Rodriguez shot his children, Rodriguez had written a message which confirmed that Flores had told him of Soto's visit to the police. The message said, among other things, "you left me, and Officer Flores knows it," and "Law 54, which is only a tool for women to make men do whatever they want, is not liberty.""

The 1^st Circuit Court of Appeals held that Ms. Soto could not prevail on a §1983 due process claim or equal protection claim. Ms. Soto alleged that her due process claim fell outside the scope of DeShaney because the police not only failed to protect her children, but they created the danger they faced. Rather than reaching the "difficult question" of whether a §1983 claim based on a state-created danger theory is actionable, the court concludes that any due process claim must fail since Soto is entitled to qualified immunity (based upon the reasoning that there was no clearly established "state-created" danger theory in the 1^st Circuit in 1991). The court rejects the equal protection claim by finding that there was insufficient evidence that discrimination against women was the motivating factor behind the police’s alleged policy of providing less protection to female victims of domestic violence.