Police civil liability for inappropriate response to domestic assault victims☆
Introduction
The criminal justice system historically has taken a hands-off approach in dealing with domestic violence Buzawa & Buzawa, 1993, Lyon, 1999, Robinson & Chandek, 2000. Indeed, from 1776 through the 1850s, the law tolerated wife abuse (Bradley v. State (1 Walker 156, 1824); Eigenberg, 2001, Rotunda & Nowak, 1999). By the 1870s, spouse abuse was banned in most states Gosselin, 2000, Lyon, 1999, yet it was not criminalized for another decade (Rotunda & Nowak, 1999); the issue had faded by World War I. The social turmoil of the 1960s and early 1970s, with the women's and civil rights' movements, brought domestic violence back to the forefront of criminal justice policy making (Gosselin, 2000), implicating police organizational culture in the perpetuation of the problem.
A primary issue for domestic violence between the 1960s and 1980s was the lack of police response. This was compounded by the absence of legal remedies available to women who requested, but did not receive, police assistance (Klein, 1990, 1991). Police initially responded to criticisms by becoming more active in the form of counseling and mediation between the two spouses (Feder, 1999), but these policies did not eradicate the problem Miller, 2000, Stanko, 1985. Hence, criticism of the police for their response to domestic abuse continued through the 1970s.
Research in the 1980s attempted to identify why police departments and officers were hesitant to treat domestic incidents as they would other assaults. Findings indicated that police viewed domestic violence as a “family,” and not a police, matter Mederer & Gelles, 1989, Saunders, 1995. Skepticism of victim statements also was reported, with police arguing, for example, that victims participated in the violence or that victims chose to not prosecute Feder, 1999, Stanko, 1985, Stephens & Sinden, 2000. Such attitudes and responses were backed by departmental policies and/or training manuals Miller, 2000, Stephens & Sinden, 2000, allowing officers to marginalize victim reports and avoid arresting batterers.
By the end of the decade, domestic violence was firmly established as an issue that the criminal justice system—and specifically the police—had to address in a more effective manner Browne, 1995, Robinson & Chandek, 2000. Not only had domestic violence been identified as a social problem, research indicated that when officers had discretion, arrest rates for domestic violence were lower than arrest rates for nondomestic incidents Buel, 1988, Miller, 2000. Furthermore, the Minneapolis Domestic Violence Experiment, which indicated that arrest was more likely to deter batterers from further violence than mediation or separation—traditional police responses Feder, 1999, Lund, 1999, Mignon & Holmes, 1995, Robinson & Chandek, 2000, Sherman & Berk, 1984, prompted the passage of numerous policies designed to improve police responses (Hirshel & Hutchinson, 2001).1 These changes generally took the form of mandatory and presumptive arrest policies Browne, 1995, Fyfe et al., 1997, Lippman, 1999, Lund, 1999, Mignon & Holmes, 1995.
Research exploring the effect of these policies on domestic violence, conducted by reviewing case files, observing police behavior, and surveying victims, indicated that while change occurred, the policies were not completely successful Bourg & Stock, 1994, Connolly et al., 2000, Feder, 1999, Harrell & Smith, 1996, Zalman, 1992. Statistics showed that from the 1970s through the 1990s, approximately 30 percent of female homicides in the United States involved intimate partners (Lyon, 1999). Studies in individual jurisdictions indicated that police arrest rates for domestic assaults continued to be lower than those for stranger assaults Bourg & Stock, 1994, Browne, 1995, Buzawa et al., 1995, Connolly et al., 2000, Zalman, 1992. In a review of research assessing the impact of proarrest policies and statutes on arrests, Feder (1999) reported that rates of arrest fell between 11 and 22 percent when a victim was seriously injured in a domestic assault. Finally, Mignon and Holmes (1995) examined domestic violence arrest rates across a period during which a mandatory arrest policy was initiated in Massachusetts. This policy's impact was a fivefold increase in arrests, with over 37 percent of domestic incidents yielding an arrest (Mignon & Holmes, 1995). While the increase appeared dramatic, police were criticized because still fewer than 50 percent of such cases produced the response mandated by policy.
Research exploring situational factors considered by officers in making domestic violence arrest decisions under mandatory and preferred arrest statutes indicated that officers' greater tolerance of violence within marriage compared to without marriage (Fyfe et al., 1997) might be related to their gender role orientations Black, 1980, Martin, 1976. The larger organizational context, however, also played a role Crank, 1998, Felson & Ackerman, 2001, Kappeler et al., 1998.
This was demonstrated in the research of Stalins and Finn (1995), who reported that while new, presumably inaculturated, officers were likely to take a “justice”-oriented approach when making domestic violence arrest decisions, older officers were more pragmatic in their approach. More experienced officers strongly considered the level of offender dangerousness relative to the impact of arrest, the likelihood that they could provide strong evidence supporting charges, and the probability that victims would not pursue prosecution. These differences suggest that the police organizational culture plays a role in law enforcement's response to domestic violence. When police respond inappropriately to domestic violence incidents, civil lawsuits are used not only to vindicate individuals' rights, but also to force change in police behavior Gelhaus, 1999, Holden, 1989, Kane, 2000.2
This article focuses on police civil liability under Title 42 United States Code Section 19833 for inappropriate police response to domestic violence. The cases discussed represent all successful 1983 cases identified through a Westlaw and Lexis search of Equal Protection, Section 1983, domestic violence lawsuits.4 Analyzing the Fourteenth Amendment's equal protection clause, this research divided case law into two broad areas: gender discrimination and crime type discrimination. Specifically, the legal liability of police officers for inadequate response to domestic violence incidents was assessed by using case law to classify the types of conduct by officers and/or departments that led to the courts' use of either intermediate or minimal scrutiny standards. This is an emerging and important area of law for both potential plaintiffs and police. Indeed, the paucity of successful cases demonstrates the difficulties faced by plaintiffs who seek redress through the courts. By examining these successful suits and classifying the issues raised by the courts using these different standards, this article begins to identify trends in the law that are relevant to litigants, defendants, and social science researchers.5 Thus, these categories are presented in order to lay the groundwork for bridging the gap between the legal and social science literatures on this topic.
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Section snippets
Domestic violence and equal protection
The Fourteenth Amendment's equal protection clause has been interpreted to mean that the state may not create laws or administrative classifications that discriminate against people within a classification; all individuals who are similarly situated must receive treatment that is similar to what other members of that classification receive (Tribe, 2000).6
Gender discrimination and intermediate scrutiny
If a classification is characterized as quasi-suspect, such as gender (Nowak & Rotunda, 1995), the test developed by the U.S. Supreme Court in Craig v. Boren (1976) using the intermediate level of review applies. For the classification to be upheld under this test, as shown by Fig. 1 there must be an “important governmental objective” that is “substantially related to the achievement of those objectives.” Plaintiffs can prevail if they prove that, motivated by gender discrimination, police
Months of apathetic police response
Research shows that female abuse victims often repeatedly ask police for help Feder, 1999, Miller, 2000. One of the first, and best known, cases to invoke the Fourteenth Amendment's equal protection clause to protect women against discriminatory police treatment in domestic violence situations was Thurman v. City of Torrington (1984). This case employed the argument that months of apathetic police response provided evidence of gender discrimination.
In October 1982, Tracey Thurman began a long
Gender discrimination based on untimely response to 911 calls
Domestic violence has historically been categorized as simple assault, and simple assaults typically are considered low-priority calls (Sinden & Stephens, 1999). As a result, women who use 911 to request police assistance often wait for that help to arrive Holden, 1989, Lyon, 1999. Women are disproportionately the victims in domestic violence incidents (Sinden & Stephens, 1999); hence, equal protection lawsuits against police can be successful if plaintiffs produce evidence that the lack of, or
Gender discrimination motivated by animus against women
One of the most difficult hurdles for plaintiffs to overcome in equal protection cases is proving that the alleged gender discrimination was motivated by animus against female victims of domestic violence. Balistreri v. Pacifica Police Department (1990), in which Jean Balistreri was repeatedly beaten by her estranged husband over a four-year period, provided an example of the proof needed to document police animus against women.
In February 1982, her husband seriously assaulted Jean, but
Gender discrimination based on failure to enforce a state statute
Gender discrimination also may be evidenced by police failure to follow state law. As one approach to addressing police responses, or lack thereof, to domestic violence, many state legislatures promulgated statutes requiring police to inform domestic violence victims of their legal rights. Such policies shift responsibility for dealing with domestic violence from victims to police (Buel, 1988). This has been supported by the courts, who suggest that equal protection may be violated if officers
Crime type discrimination and minimal scrutiny
“Crime type” discrimination occurs when law enforcement officials treat domestic violence cases less seriously than other violent assaults. A minimal scrutiny standard, referred to as the rational basis test, is used because the focus is on crime type and not discrimination against women. Under this lower standard of scrutiny, police only need to show a rational relationship between the differential treatment and a legitimate governmental interest Vance v. Bradley (1979). In a number of
Crime type discrimination based on statistical evidence
Research demonstrates that police treat domestic violence incidents less seriously than other assaults Browne, 1995, Connolly et al., 2000, Feder, 1999. Numerous studies conducted both prior to the 1980s and after the passage of mandatory and presumptive arrest policies indicated that police were more likely to arrest in nondomestic assault calls than domestic violence calls Bell, 1985, Blount et al., 1992, Feder, 1999. In the past two decades, such research was employed to help provide
Crime type discrimination based on failure to arrest domestic abusers outside an officer's presence
Police are frequently criticized for not arresting perpetrators of domestic violence if the abuse occurred out of their sight del Carmen, 2000, Lyon, 1999. This type of arrest behavior was in part due to traditional policies that required a warrant for an officer to arrest if the officer did not witness the offense (Feder, 1996). Following criticisms of such policies, in the mid-1980s, many laws promoting proactive police response to domestic violence were passed specifically to give police the
Crime type discrimination based on failure to dispatch police officers to emergency domestic violence calls for assistance
Research indicated that 911 calls categorized as simple assaults received a low priority for police response. Such low-priority calls typically lead dispatchers to wait for officer availability, or to encourage callers to contact social service agencies for assistance (Sinden & Stephens, 1999). Browne (1995) noted that evidence of the intent to discriminate may be demonstrated if agencies dispatched officers to 911 crime-in-progress calls not related to domestic violence, but did not dispatch
Crime type discrimination based on failure to remove domestic abusers from victims' homes
Police historically did not separate domestic violence perpetrators from their victims because they considered domestic incidents to be family matters not deserving law enforcement attention. Courts responded to this issue, emphasizing the need for police response in situations where it is reasonable to assume that violence is a potential outcome. A review of cases indicates that courts may hold police liable if they expose a domestic violence victim to future violence by failing to remove the
Conclusion
In recent years, law enforcement agencies have responded to criticisms and made strides to break down barriers between communities they serve and their officers (Jones & Belknap, 1999). Police–citizen partnerships, domestic violence response teams, and domestic violence courts have empowered police to help victims of domestic violence avoid serious injury and/or death Feder, 1999, Feder, 2000, Lippman, 1999, Weisz, 1999. In some jurisdictions, community police officers help victims of domestic
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- An earlier version of the article was presented at the 2000 American Society of Criminology meeting, held in San Francisco, CA. Authorship is alphabetical; both authors made equal contributions to the completion of the article.
Copyright © 2002 Elsevier Science Ltd. All rights reserved.
