Is Police Liable For Failure To Protect A Fearful Complainant?
Possible Liability Under The “State Created Danger” Doctrine
Kimberly Kennedy v. Ridgefield City, et al., .... F.3d ......, 2005 WL 1475391 (9th Cir., June 23, 2005)
Here, we discuss another § 1983 case out of the Ninth Circuit Court of Appeals that was decided just four days prior to the Castle Rock decision. See, When Police Fails To Enforce A Restraining Order . . . .
The Kennedy v. Ridgefield City case deals with an issue which may not be affected by the Castle Rock precedent. If Kennedy v. Ridgefield City is sought to be reviewed in the United States Supreme Court and that tribunal elects to accept it for review, the decision below will likely be affirmed. Inferentially, the current case discusses the issue whether the “police discretion” doctrine is likely to trump the “state created danger” doctrine. Because both the Castle Rock case and this decision deal with police liability for non-enforcement, albeit under different circumstances, we feel that the two cases deserve to be considered together.
The Ridgefield City case stems from the fatal shooting of plaintiff's husband and the wounding of plaintiff herself by a thirteen-year-old neighbor, Michael Burns. Kimberly Kennedy had complained to the Ridgefield Police Department (RPD) that Burns had sexually molested her nine-year-old daughter, Tera Teufel. She made this complaint
to RPD Officer Shields, who had responded to her complaint about Burns' violent tendencies. She informed Officer Shields that she had witnessed a lot of violence in the Burns home, including violence inflicted on Burns' mother. Mrs. Kennedy also told Shields of other incidents committed by Michael Burns, “including fights at school, lighting a cat on fire, breaking into his girlfriend's house and attacking her with a baseball bat, and throwing rocks at a building in downtown Ridgefield.” She had described the Burns family as very unstable. When the Burns family was informed of her complaint, Mrs. Kennedy wanted her family to be out of harm's way; they planned to leave town temporarily.
In the federal complaint she filed after her husband's shooting death, she alleged that Officer Shields had assured her that she would be given prior notice before there was any police contact with the Burns family about her complaint. For the purpose of summary judgment motions, the plaintiffs' allegations are assumed to be true.
Officer Shields forwarded the complaint to the Child Abuse and Intervention Center (CAIC), and, even though Mrs. Kennedy inquired about the status of the investigation and reminded the RPD of its promise to keep her informed of any contact with the Burns family, there was no further contact between the police and Mrs. Kennedy from the date of the filing of the complaint and the date of the shooting that resulted in her husband's death as well as her wounding. She had also expressed similar concern about her safety to the CAIC officer who handled the investigation.
WAS OFFICER SHIELDS' PROMISE FORGOTTEN?
In response to a message left for Shields on the day of the shooting, Shields proceeded to the Kennedy house to discuss what little he knew about the case, but on his way he decided to first call upon the Burns family, where he discussed the molestation complaint with Michael's mother, Angela Burns. When he told Mrs. Kennedy of this later, Shields told her that Angela had become very angry. Mrs. Kennedy “became very upset and asked Shields why he had contacted the Burns family prior to notifying her and told Shields that she was in fear for her safety. Kennedy alleges that Shields assured her that the police would patrol the area around her and Michael's house to keep an eye on him.”
Mrs. Kennedy had planned to lock the doors to her house and leave town early the next morning, relying on Shields' promise to patrol the area and keep an eye on Michael Burns. These assurances proved to be for naught, because during the night “Burns broke into the Kennedy house and shot Jay and Kimberly Kennedy while they slept.” The husband died of his injuries. Michael burns was convicted of the premeditated murder of Jay Kennedy and attempted premeditated murder of Kimberly Kennedy. Thereafter, Mrs. Kennedy filed a law suit in the state courts claiming several causes of action, including a federal claim under § 1983 and the Fourteenth Amendment.
After the case was removed to the federal court, the United States District Court granted summary judgment in favor of the defendants on all state law claims and to Ridgefield City on the § 1983 claim. As to defendant Shields, however, the court denied his motion for summary judgment based on qualified immunity, holding that “a jury could find that Officer Shields unreasonably created a false sense of security in plaintiffs by agreeing to give plaintiffs advanced notice of advising the Burns family of the allegation that Michael Burns sexually molested Tera Teufel, and assuring the plaintiffs of a neighborhood patrol.” This appeal followed.
“QUALIFIED IMMUNITY” DISCUSSED FIRST
Relying on the Supreme Court precedent in Saucier v. Katz, 533 U.S. 194 (2001), the 9th Circuit recognized that a two-prong analysis had to be used in evaluating qualified immunity claims: “First, a court must determine whether the facts alleged (resolving all disputes of fact in favor of the party asserting the injury) show that the officer's conduct violated a constitutional right. . . . If the court determines that the conduct did not violate a constitutional right, the inquiry is over and the officer is entitled to qualified immunity.”
The liability inquiry is not over, however, simply because a court determines that the conduct violated a constitutional right. In such a case, the court must next decide whether the violated right was “clearly established.” “A right is clearly established if the contours of the right are sufficiently clear that a reasonable official would understand that what he was doing violates that right.” But even in the case where the violated right is “clearly established,” the officer still “is not precluded from claiming qualified immunity so long as [his] mistake is reasonable.”
In this case, plaintiff claimed that Shields did violate her Fourteenth Amendment right to substantive due process. In that regard, a precedent also cited in the Castle Rock v. Gonzales opinion became important. The precedent is DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189 (1989), wherein the Supreme Court had held that the due process clause was not framed in terms of a guarantee of certain minimal levels of safety and security, but rather as a limitation on a state's power to act: “Since the Due Process Clause does not require the state to provide its citizens with a minimum level of security, it follows that the state cannot be held liable for failing to do so,” the Court had said in the DeShaney case. DeShaney recognizes two exceptions, however: “Under the 'special relationship' doctrine, the state can be held liable for a third party's harm where the state has custody over the plaintiff.” Since this was not applicable in the Ridgefield City case, the court wasted little time discussing this concept. The second exception is the one that the court did apply:
“The 'state-created danger' doctrine represents the second recognized exception to DeShaney's rule against holding state officials liable for private violence. Under this theory, plaintiffs can recover when a state officer's conduct places a person in peril in deliberate indifference for their safety.*** To find an officer liable under the 'state-created danger' theory, a plaintiff must show that the officer's actions created or increased the danger facing him or her. Second, the plaintiff must demonstrate that the state official acted with deliberate indifference to a known and obvious danger. Interpreting the facts in a manner most favorable to Plaintiff, we conclude that Shields did in fact augment the danger Plaintiff and her husband faced and acted with deliberate indifference to a known and obvious danger. Plaintiff has therefore demonstrated that her constitutional rights were violated and so satisfied the first prong . . .”
THE COURT'S REASONS
The court found that Shields had not disputed that the revelation to Angela Burns of the allegations of sexual abuse leveled against her son triggered Michael's actions against Mrs. Kennedy and her husband. By revealing that information to Mrs. Burns, Officer Shields created a situation of heightened danger since Michael Burns would inevitably learn about the complaint from his mother and would know who made it. If Mrs. Kennedy had been told that her complaint was revealed to the Burns family, she could have taken additional precautions against violence. “Instead, they relied on Shield's promise of advance notification and so considered additional precautions to be unnecessary.”
The court recognized that “Shields further augmented this danger by offering false assurances that the police would patrol the Kennedy's neighborhood the night of the shooting. Misrepresentation of the risk faced by a plaintiff can contribute to a finding of state-created danger.” The court also determined that Shields had acted with “deliberate indifference' in that he should have foreseen the obvious consequences of his conduct. He had been informed of Michael Burns' violent tendencies and past assaultive behavior; he also knew that the Kennedys feared Michael's vengeance. The question still to be resolved was whether the plaintiff's right was one that was “clearly established.” This is the second prong that must be answered before police can be held liable under the “state-created danger” doctrine of the DeShaney precedent: “For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent.”
THE RIGHT WAS “CLEARLY ESTABLISHED”
By September of 1998, when the case arose, there had been a number of decisions establishing that state officials could be held liable when they affirmatively and with deliberate indifference placed an individual in danger. It was plaintiff's burden to show that Shields knew or should have known that by informing Angela Burns of the Kennedy sexual misconduct complaint prior to warning the Kennedy family, and falsely promising a police patrol that evening. was a violation of the Kennedys' constitutional rights.
The court reviewed numerous cases that, while not identical on their facts, established a pattern of court decisions holding officials liable for state-created danger to third parties. This pattern was sufficient to satisfy the court's inquiry of whether Shields knew or should have know of the possible liability consequences of his conduct. As the court concluded:
“Here, Shields' actions both increased and misrepresented the risk plaintiff faced. Under [existing court precedent], increasing or misrepresenting a known risk may give rise to § 1983 liability. This doctrine was clearly established by the time the events of this case took place. Accordingly, the trial court's denial of Shields' motion for summary judgment based on qualified immunity is hereby affirmed.”
There was a dissent in this case, wherein a circuit judge accused the majority of mangling the state-created danger doctrine, because none of the prior cases had held officials liable for merely increasing the risk. Indeed, in the cases the majority relied on, the government was held liable because it had acted affirmatively, rather than through inaction.
