Freeman v. Ferguson , 911 F.2d 52 ( 1990 )

HANSON, Senior District Judge.

Appellant asserts that the District Court erred in dismissing her cause of action under Rule 12(b)(6). The thrust of appellant’s claim is that appellees, a municipality, the city police department, and municipal and police department employees, acted in violation of the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution and in violation of provisions of the Arkansas Constitution, through the course of conduct they took with regard to plaintiffs decedents, Valerie D. Downen and Geraldine H. Downen. According to the pleadings, Geraldine Downen, age 38, and Valerie Downen, age 18,:

met a violent and untimely death at the hands of Geraldine H. Downen’s estranged husband, Norman “Bud” Dow-nen, Jr. At the time of the killings there was outstanding and in existence, a restraining order issued by the Chancery Court of Desha County, Arkansas, restraining Norman “Bud” Downen, Jr. from harassing, coming about, intimidating, bothering or in any manner interfering with Plaintiff’s decedent, Geraldine H. Downen. The Defendants, on numerous occasions, deliberately, indifferently, and intentionally, ignored, refused and failed to take seriously Geraldine H. Downen’s pleas for help and demands to them to enforce the restraining order and to stop said Norman “Bud” Downen, Jr. from threatening, coming about, and intimidating her.

On February 23, 1989 the District Court dismissed the action for failure to state a claim under DeShaney v. Winnebago County DSS, a case which the Supreme Court had issued on the previous day and which substantially altered the framework upon which cases such as that at bar are to be considered. 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). We reverse the decision of the district court. Although we agree with the District Court that the original complaint was insufficient to state a claim under DeShaney, we find that appellant should have been given an opportunity to attempt to amend her complaint to conform with the rule of law established by DeShaney prior to dismissal of this action.

DeShaney

In DeShaney the Supreme Court held that a state had no constitutional duty to protect a child, Joshua, from attacks by his father even though the state had received reports of the father physically abusing the child. 109 S.Ct. at 1001. The Court rejected the proposition that states have a general constitutional duty to protect their citizens from private violence, noting that each previous ease in which it had found a constitutional duty to protect had involved a person taken into custody by a state, and thereby a situation in which the state had taken an affirmative action which rendered an individual less able to care for himself. Id. at 1005. The Court distinguished such cases from the situation presented in De-Shaney as follows:

[wjhile the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father’s custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual’s safety by having once offered him shelter. Under these circumstances, the State had no constitutional duty to protect Joshua.

Id. at 1006.

Appellant alleged at oral argument that this case is analogous to the cases in which a duty to protect has been recognized, and distinguishable from DeShaney. This allegation is based on the argument that in this case the state did play a part in the creation of the danger which resulted in the death of the Downens, and that the state did take actions which rendered them more vulnerable to such danger. The most specific allegation appellant presented with regard to this claim is that:

we could show conclusively that ... Mr. Downen was, in fact, a close bosom buddy of the Police Chief. We probably would be able to show that on occasions that some officers attempted to stop the conduct of Mr. Downen but they were directed not to [by the police chief] because that was, quote, Bud, end of quote. That he [Bud Downen] spent many of his days and nights with the police chief at the jail and his family had a very definite influence in this situation.

Recording of Oral Argument, January 17, 1990.

We find that such an allegation is distinguishable from DeShaney. It presents a claim that the violence the decedents were subjected to was not solely the result of private action, but that it was also the result of an affirmative act by a state actor to interfere with the protective services which would have otherwise been available in the community — with such interference increasing the vulnerability of decedents to the actions of “Bud” Downen and possibly ratifying or condoning such violent actions on his part. See generally Balistreri v. Pacifica Police Dept., 901 F.2d 696, 700 (9th Cir.1990) (rejecting due process claim based on failure to enforce restraining order in domestic abuse case because of lack of allegation that state actors had somehow affirmatively placed abuse victim in danger or had done anything to ratify, condone or instigate the actions of the victim’s ex-husband). Without such affirmative actions on the part of the chief of police, the danger faced by the Downens would have arguably been less.

It is not clear, under DeShaney, how large a role the state must play in the creation of danger and in the creation of vulnerability before it assumes a corresponding constitutional duty to protect. It is clear, though, that at some point such actions do create such a duty. DeShaney, 109 S.Ct. 1005. To date the Supreme Court has found such a situation only in a custodial setting. Id. It is instructive, however, that in DeShaney the Court considered it necessary to review the state’s actions with regard to Joshua’s claim to determine whether the state had placed him in greater danger or made him more vulnerable, even though he was in a non-custodial setting. Id. at 1006. This analysis establishes the possibility that a constitutional duty to protect an individual against private violence may exist in a non-custodial setting if the state has taken affirmative action which increases the individual’s danger of, or vulnerability to, such violence beyond the level it would have been at absent state action. Appellant’s allegations indicate that in this case the state may have increased the dangers faced by the Downen women to such a level.

In fairness to the District Court we note that appellant’s allegations made in oral argument regarding the Police Chief’s actions in affirmatively placing decedents in a more vulnerable position were not pleaded this specifically in the complaint. Instead, appellant originally pleaded that the Police Chief “had such a close personal relationship with Norman (Bud) Downen and others in the community, that he failed to act as incumbent upon him to perform the duties of Police Chief”. Although the more specific allegation quoted above easily fits within this general claim, we agree with the District Court that after DeShaney such general allegations are insufficient to state a federal constitutional claim. However, appellant filed her complaint prior to DeShaney and had no opportunity to amend her complaint in response to the law established by DeShaney prior to its dismissal. We find that equity and fairness require that appellant be granted the right to amend her complaint with the more specific pleadings now required.

Close examination of such a replead complaint may still leave the allegations short of what is now required to establish a constitutional claim against some or all of the appellees. It would be imprudent to so conclude at this juncture, though, as the law is not entirely established as to the extent to which the government must increase the danger of private violence before it assumes a corresponding duty to protect. DeShaney does establish that the overall danger must at least be greater than it would be absent state action, and it also establishes that the increased danger created in a custodial setting is sufficient to trigger the duty. Id. at 1005-06. It says little about the grey area in between. Accordingly, as we cannot determine from the current pleadings whether appellant’s claims fall within this potential window, and if so where, we find that appellant must be given the opportunity to amend her complaint before a conclusive ruling on this issue can be made in this case.

The order of the District Court is reversed and the case is remanded with directions that appellant be allowed to amend in accordance with this decision. Although we have not discussed the equal protection claims the court is instructed that appellant also be allowed to replead these claims. As noted in DeShaney, the state may not “selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause.” Id. at 1004 n. 3. See also Balistreri, 901 F.2d at 700-02 (plaintiff should be allowed to amend conclusory equal protection claim to include specific claim that defendant’s conduct reflected discrimination based on plaintiff’s status as a female victim of domestic violence).

It is so ordered.