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.