THE PROTECTION OF LIFE, LIBERTY, AND PROPERTY:
A VICTIM’S LACK OF REMEDIES WHEN A PROTECTION ORDER FAILS
Summer 2011
I. Thesis and Introduction
There are no rights without an adequate remedy. The Supreme Court’s rulings in two cases eliminated the remedy that victims with a protective order have against an officer or municipality that fails to enforce a protective order. However, the Supreme Court has not eliminated the remedy alone. Other circumstances that nullify equal-protection principals have eliminated part of the remedy for these victims as well. Without an adequate remedy, a protective order is a piece of paper that may not help a victim in a dire situation.
A. The Crime Victims’ Rights Act: A Federal Law Blunder
Congress tried to address the problem of victims not having protection from their abusers by passing the Crime Victims’ Rights Act (hereafter “CVRA”).[1] The act attempted to grant victims’ rights. However, the CVRA granted victims an “empty and unenforceable right.”[2] Specifically, the CVRA granted a “right to be reasonably protected from the accused.”[3] Unfortunately, this right is unenforceable partially because remedies influence rights, and the remedy for the protection of victims is often unclear or missing.[4] The CVRA fails to address how a victim will be protected. The CVRA is the only piece of federal legislation that attempts to grant a right to victims, and it fails to do so. While this note does not focus exclusively on the failure of the CVRA or other statutes, this note will focus on the lack of a remedy for a victim of domestic violence. Specifically when that victim had a protective order against their aggressor and the police or municipality failed to enforce the protective order.
B. The Unyielding Cycle of Domestic Violence
Domestic violence is a cycle of domination and control of one person in a relationship over another person in a relationship.[5] Domestic violence encompasses a multitude of offenses including but not limited to: assault, including aggravated and sexual assault; battery, including aggravated and sexual battery; stalking; kidnapping; and false imprisonment.[6] Unfortunately, domestic violence is the number one cause of injury to women in the United States,[7] and nearly thirty-two percent (32%) of women[8] that are a victimized become a victim again within six months.[9] Each day in the United States, about three women are murdered by their significant others.[10]
One way that many women try to avoid this tragic end is to seek a court order against their significant other. These orders are often effective because they “send a message to the abuser that they are not above the law.”[11] However, because domestic violence is a continuous cycle many women want to prosecute their abuser initially and subsequently change their mind. The cycle has three phases: the explosion phase, the honeymoon phase, and the tension-building phase.[12] The violence occurs during the explosion phase.[13] During this time, victims are often afraid that there will be another outburst.
After a few weeks, the situation eases and the honeymoon phase starts. The abuser attempts to get the victim to forgive him by promising that it was an accident, saying “I love you,” buying the victims gifts, etc.[14] During this phase, a prosecutor is usually trying to get the case against the abuser beyond filing. Often the abuser manages to convince the victim during this phase and the victim becomes uncooperative. Sometimes the victim wants to drop the case against the abuser for other reasons, like financial dependence. Regardless of why a victim is uncooperative, once the victim in a domestic violence situation is uncooperative the State will usually drop the case against the abuser.[15] The State drops the case because the victim is often the state’s main witness against the abuser. Once the State drops the case, the victim will have little to no protection against the abuser. After the State drops the case, the tension-building phase occurs where the victim has to “tip-toe” around and often argues with the abuser.[16] Once the cycle reaches the explosion phase again, the abuse is often worse than the previous phase.[17] Even though the abuser battered the victim more severely, the victim often is not fearful enough to seek a protective order or press charges until she fears for her life.
However, this note will focus on the victims who have already reached the point where they possess an order, whose aggressor was not afraid of the order, and the police failed to protect the victim. Victims in these cases often find themselves with no remedy against the police or the municipality for their failure to protect the victims. Experts believe that women will only reach out to the police for protection if the women believe that the police will actually protect them.[18] If the common person learns that the Supreme Court held that there is no duty for an officer or municipality to enforce a protective order and what their limited remedy to this predicament will be, many women will lose faith in the government’s ability to protect their life, liberty, and property.
C. Obtaining a Protective Order is Difficult
A victim must satisfy a high legal standard for the court to grant a protective order to a victim. The court will issue an order to an individual only when the individual is a victim of domestic violence or when the individual reasonably believes that “he or she is in imminent danger of becoming a victim of domestic violence.”[19] The court will consider the following when weighing whether it should issue a protective order: the allegations, the history of the relationship, and the behavior of the parties in their relationship.[20] For example, the court will most likely grant a protective order to a woman that shows up to court with bruises and lacerations accusing her partner of domestic violence. However, the courts have held that a non-violent threat is not enough for the issuance of a protective order.[21] For instance, if a woman presents to the court that her partner is threatening to come to her residence at a certain time, this is not enough for a protective order even though the woman may fear for her life. This is because the woman does not have any proof that she is in an imminent danger.
While there is not a definitional difference, the courts have distinguished the terms in their usage.[22] Immediate means that an event will occur “without delay.”[23] Imminent is a much stronger word as it implies a pending perilous situation that will immediately happen unless there is an intervention. For instance, a woman has a temporary injunction against her lover because he stalked her immediately after their break-up.[24] Two years passed and there was no contact between the two parties, but the victim obtained a permanent protective order against her former lover.[25] The court held that the order was inappropriate because the victim did not have “a reasonable fear of imminent serious physical harm.”[26] Thus, the distinction between imminent and immediate is slight but distinct enough to cause unwary victims difficulties.
Once victims have passed through the hurdle of obtaining an order, they can only hope that if the aggressor violates the order, the police will enforce the order and arrest the aggressor. Unfortunately, the Supreme Court held that the police do not have to enforce an order and that in most situations a victim cannot seek redress from the officers that have failed to protect him or her.[27] Today, a victim cannot rely on an order for their protection in and of itself.[28]
D. Roadmap
This note will lay out how the Due Process Clause is moot as a remedy in both substantive and procedural due process in Part II. Part II will also focus on the difficult exceptions of a special relationship and a state-created danger, and it will examine qualified immunity and the public duty doctrine. Part III will focus on how a victim may seek a remedy under the Equal Protection Clause with emphasis on the difficulty of doing so. Part IV will reiterate the often-used negligence claim and explain why negligence claims often fail. Finally, Part V will explore current Florida Statutes, which focus on how victims may or may not have a remedy in Florida. Finally, Part VI will give some recommendations as to how to provide a remedy for victims.
II. Due Process and Section 1983
42 U.S.C.A. § 1983, more commonly referred to as section 1983 (hereinafter “section 1983”), was enacted as part of the 1871 Civil Rights Act.[29] Section 1983 establishes that if a person who is working for the State and its laws deprive another of a right, the person is liable to the injured party.[30] Section 1983 has an inherent exception; if the action is against the individual in his official capacity, the action is barred.[31] However, section 1983 allows victims to sue a State actor when the State actor harmed the victim.[32] Many victims have brought a section 1983 action against officers when the officers failed to protect them. A victim may bring three types of claims under section 1983: (1) procedural-due-process claims[33], (2) substantive-due-process claims[34], and (3) equal-protection claims[35]. All three claims encompass an ordinary negligence claim. To establish a prima facie case under section 1983 the victim must show that: (1) “a person deprived [him or her] of a federal right,” and (2) “the person who deprived [him or her] of that right acted under State or territorial law.”[36]
Section 1983 offers “a method for vindicating federal rights elsewhere conferred,” but it does not create any rights.[37] The Due Process Clause is moot as a remedy under section 1983 for victims of a failed protective order because of two Supreme Court cases: DeShaney v. Winnebago County Department of Social Services, et al.[38] and Town of Castle Rock v. Gonzales.[39] The plaintiffs in both of these cases brought section 1983 actions, but each case dealt with a different part of the Due Process Clause.[40] The plaintiff in DeShaney asserted that the State violated a substantive due process right and sought a remedy under section 1983. Whereas, the plaintiff in Gonzales asserted that the police violated a procedural due process right and sought a remedy under section 1983.[41] Neither party received their remedy under the section 1983 claims.
Essentially, the Court in DeShaney derails substantive due process as a remedy, and the Court in Gonzales derails procedural due process as a remedy. In both cases, the Court asserts that the Due Process Clause was created to “protect the people from the State, not to ensure that the State protected them from each other. . . [and] the extent of government obligation. . . [was left] to the democratic political process.”[42] DeShaney even goes so far as to say that the State legislature may enact laws that will impose liability in these tragic situations, but the States “should not have [official responsibility for the failure to act] thrust upon them by this Courts expansion of Due Process.”[43] The States considered this when amending their legislation; however, Gonzales undermined any action that the States took after DeShaney when the Court clearly went against legislative intent and history to say that “shall” is not mandatory.
A. Stripping Substantive Due Process: DeShaney
Substantive due process is the part of the Due Process Clause that protects fundamental rights that are “deeply rooted in this Nation’s history and tradition.”[44] Substantive due process may be expanded by the Court, but the Court is usually “reluctant to expand the concept of substantive due process.”[45] Substantive due process can be described in its most simple form as the deprivation by the government of life, liberty, or property.[46]
In a 1989 decision delivered by Chief Justice Rehnquist, the Supreme Court held that the government’s failure to act when the police and others knew of an unstable situation did not violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.[47] In DeShaney, a father beat his four-year-old child into a life-threatening coma, which resulted in permanent brain damage rendering the boy institutionalized for the profoundly retarded.[48] Prior to the disabling beating, the hospital admitted the boy twice.[49] During the second visit to the hospital, an ad hoc Child Protection Team convened to decide if it possessed sufficient evidence to hold the child in the court’s custody.[50] The Team decided that it did not have enough evidence and appointed a caseworker to observe the child on a weekly basis.[51] During those visits, the caseworker observed “suspicious injuries” on the child, but the “suspicious injuries” did not warrant the State taking custody of the child from the father.[52] The mother, on behalf of the boy, brought a section 1983 action against the social workers and local officials, all agents of the State, which knew of the abuse but took no action.[53] The Court decided that the mother could not hold any of the public officials liable under any constitutional grounds.[54]
Unfortunately, the Court clearly states, there is
nothing in the language of the Due Process Clause itself [that] requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the States’ power to act, not as a guarantee of certain minimal levels of safety and security.[55]
More simply, the Due Process Clause does not create an affirmative obligation on the State to protect its citizens from each other.[56] To break this down, the Court is saying that in nearly every situation, the government must protect its citizens from the government stripping a citizen of his or her life, liberty, and property. The Court does not believe that the State had to protect the boy from his father, even though the State actors knew about the abuse.
Unfortunately, this holding reaches far beyond the child abuse threshold. When the Supreme Court held the Due Process Clause did not protect private parties from other private parties, the Supreme Court entered an intentionally broad holding. The holding allows the lack of protection into any type of situation if the situation is dealing with individuals against other individuals. To many the lack of protection is an outrage when the government or its actors are informed about the abuse, violence, or pending terrible situation.
To that extent, one may extend the holding into a protective order situation because protective orders are only in situations where a private party is violent against another private party. Unfortunately, many common people are under the impression that if they possess a protective order and then the State fails to protect them against private violence, they may hold the State responsible. Clearly, this is not the case.[57] In fact, the Court “rejected the argument that once [the] State took steps to intervene in the abuse, it was obligated to do so in a reasonably competent manner.”[58] Since the Court did not specify who the abused must be, the reasoning is extended into a general situation, including domestic violence with a protective order violation situation.
In a domestic violence situation, an officer may intervene in the abuse by simply breaking it up, leaving the house, and then wait for the victim to call the police again.[59] This would be a State intervention in abuse, but it is not a reasonably competent intervention. A reasonably competent intervention would be one where an officer ensures that the situation will not continue within the near future.[60] The Court is not diminishing the idea of State intervention, but the Court is saying that the Due Process Clause does not grant a right to State intervention in those private-actor situations. The Court has not changed its holding that strips substantive due process as a remedy in a 1983 action, and as discussed later, expands this position in Gonzales by stripping procedural due process as a remedy in a 1983 action. The Court held that the founders did not create the Due Process Clause to “transform every tort committed by a State actor into a constitutional violation.”[61] For instance, in DeShaney the mother could have brought a negligence claim against the State actors for failing to intervene in her sons situation, but she brought a substantive due process claim, a constitutional violation claim, instead.
Fortunately, the Court did not completely destroy the substantive-due-process remedy. The Court laid out two exceptions where the State may have a duty to protect the victim: a special relationship and a state-created danger.[62] However, both of these exceptions are difficult to procure.
1. Special Relationship Exception
The Court created an exception to the severe limitations of substantive due process in the form of special relationships.[63] A special relationship is created when the State has taken a victim into their custody and control, which restricts the victim’s freedom and ability to get his or her basic needs.[64] The Court narrowly defines these relationships. The mere existence of a relationship between the State and the victim, even if the State knows of the victim’s situation, does not create a constitutional duty to the victim.[65] Thus, the “affirmative duty” to protect an individual originates from the “limitation which [the State] has imposed on [the individual’s] freedom to act on [his or her] own behalf.”[66]
There are several examples of when a special relationship exists and when it does not exist. There is a special relationship when there is an “involuntary committed mental patient,” a person that has been taken into custody against their will (this is nearly every incarcerated person), or even a foster child.[67] Perhaps, the most relevant example of when the State creates a special relationship is when a person is arrested.[68] When the State forms a special relationship with these individuals, the State must provide adequate food, shelter, clothing, medical care, and reasonable safety.[69] If the State fails to provide these things, the State would violate the constitution.[70] Specifically, the State would violate the Due Process Clause if the State failed to provide those thing for a prolonged period of time because the State would intentionally create a situation that would deprive the individual of his or her life (for lack of food, shelter, or medical care), liberty (by keeping him or her in the State’s control), or property (by taking away his or her clothing and not providing an adequate substitute).[71] Conversely, by example, when an individual is out of custody via a voluntary bail, there is no special relationship because the State did not “intentionally deprive [the individual] of the ability to care for [himself or herself].”[72]
When the State has control over an individual forming a special relationship, it may create an affirmative duty for the State to act under tort law.[73] The Supreme Court distinguishes between an affirmative act and a failure to act.[74] The Court in DeShaney put it like this:
In substantive due process analysis, it is the States affirmative act of restraining the individual’s freedom to act on his own behalf. . . which is the deprivation of liberty triggering the protections of the due Process Clause, not its failure to act to protect his liberty interest against harms inflicted by other means.[75]
Thus, the State must actually or proximately control an individual before there is a special relationship.
These special relationships do not afford victims of domestic violence much protection because a victim is generally not the individual under the State’s control. The only time that the victim may have a special relationship with the State is in the child foster care situation. In a foster care situation, the State is the legal guardian of the child and as such must provide and protect the child. In other situations, an inverse benefit occurs when the aggressor is under the State’s control that forms a special relationship and the victim benefits from the State’s assertion of control. As such, some legislatures have taken these special relationships seriously and have affected mandatory arrests for any person accused of domestic violence.[76] These arrests help protect victims with and without a protective order. Alaska’s mandatory-arrest statute encompass all domestic violence, but other states’ mandatory-arrest statutes often limit their arrests to assault, battery, or violation of a protective order.[77]
When there is a mandatory arrest, the arrest creates a special relationship between the aggressor and the State. While the victim in a case will not directly benefit from this situation, the victim will indirectly benefit. The victim will be safer when the State has incarcerated the aggressor because he or she cannot reach the victim when the aggressor is under the State’s control. In cases where the victim has a protective order, mandatory arrest statutes both ensure that the police come to the victim, and that the police arrest the aggressor.[78] Thus, protecting lives and eliminating the need for a remedy against the police that have failed to protect a victim.
Mandatory arrest statutes, like the one in Alaska, also help protect the victim by showing the aggressor that he truly is not above the law. A study has shown that “[a] victim’s chance of future assault was nearly two and a half times greater when officers did not make an arrest.”[79] Thus, the creation of mandatory arrests is one way that States are trying to give a victim a remedy to the problem of protection because without them, a victim usually does not have a remedy.
2. State-Created Danger Exception
There may be a substantive-due-process claim when the State has created, in whole or partially, the danger to the victim, or has increased the vulnerability of the victim to the danger.[80] There are four elements to the State-created-danger exception: (1) the actual harm was foreseeable and direct; (2) “the State actor acted with a degree of culpability that shocks the conscience”; (3) a relationship between the State and the plaintiff existed and it could be seen that the plaintiff could be the victim of the defendant’s acts, or “a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions”; and (4) the State actor affirmatively created the danger or made the victim more vulnerable to the danger.[81] The fourth element often is the crux of a victim’s due process claim because inaction is not an affirmative action that creates danger.[82]
The State must affirmatively create the danger, and to do so the State must actually perform an action that creates the danger. [83] Often “the line between action and inaction may not always be clear.”[84] For instance, officers arrived on the scene of a single-vehicle accident where the driver jogged off.[85] The officers on scene asked the civilians that stopped to help and look for the driver to leave the scene.[86] Tourists, a year after previous search efforts failed, found the body of the driver of the vehicle.[87] The court held that the police conduct did not make the driver worse off than if the police continued searching and allowed civilians to search.[88] The court held that the action of calling of the civilian search and the inaction of discontinuing a search did not implicate due process.[89] Accordingly, a failure to act will never rise to a cognizable state-created danger.[90]
As implied in the above example, the State may not use its authority to create an opportunity of danger by failing to act.[91] In Caldwell v. City of Louisville, the State created a danger by failing to act; the sheriff arrested the aggressor, but the following day the sheriff’s office released the aggressor on bond.[92] The County appealed the release and won; a new warrant was issued for the aggressor’s arrest.[93] The sheriff’s office refused to serve the arrest warrant because of a pending investigation, during that time the aggressor fatally attacked the victim.[94] The court held that the sheriff’s inaction was enough to establish that the State created the opportunity of danger by failing to serve the arrest warrant.[95]
The State-created danger theory is a rather difficult way of establishing substantive-due-process rights because of the hurdle of affirmative action. Furthermore, the fourth element requires “a direct causal relationship between the affirmative act and plaintiff’s harm.”[96] As seen in the example above, the affirmative act of failing to issue an arrest warrant directly caused the opportunity for the aggressor to murder the victim. Thus, this tricky element can be put into a two part test: (1) was the State’s behavior an affirmative act, and (2) was the affirmative act the direct cause of a foreseeable opportunity for harm?
How is an affirmative action worse than a failure to act? If for instance, an officer was feeling lazy he or she could simply fail to act and be exempt from liability. However, if an officer’s act created a danger, he or she may find himself or herself liable to the victim that suffered the harm. In light of the reality that not all officers will act when they should because the consequences could be harsher if they act than if they fail to act, the court should reconsider the holding that an affirmative action is worse than a failure to act.
The Deshaney case created these two exceptions as to when a victim may bring a substantive due process claim. However, these two exceptions are a victim’s only hope if she wishes to pursue a substantive due process action. As shown above, neither exception is extremely easy for a victim of a violated protective order to prove. Thus, through DeShaney the Court stripped a victim’s substantive-due-process remedy almost entirely.
II. Stripping of Procedural Due Process: Gonzales
Procedural due process is the counterpart to substantive due process. Procedural due process guarantees a fair procedure when the State deprived an individual of a protected interest in life, liberty, or property.[97] The State may fulfill procedural due process in many forms, including but not limited to a hearing, a trial, a hearing, or even a simple discussion. Town of Castle Rock v. Gonzales[98] (herein after “Gonzales”) is a case about procedural due process because the mother of the victims claimed that she possessed a property interest in the enforcement of her protective order.[99] If the Court found that she did have a property interest in the enforcement of her protective order, the police had to give her a right to be heard before the police failed to enforce her protective order.[100] Thus, the mother’s argument that the state, through the police, failed to give her due process of law makes this case a procedural, not a substantive, due process case.
In Gonzales, the Supreme Court narrowed the DeShaney holding, the scope of protection under the Due Process Clause, and, as a result, victim’s remedies.[101] The tragic events leading up to Gonzales are notably “horrible” to all that study it.[102] Ms. Gonzales was issued a restraining order against her husband (concurrently with divorce proceedings), which prohibited the husband from “molest[ing] or disturb[ing[ the peace of [respondent] or of any child.”[103] However, on the back of the form was a warning that used conflicting language. One part read, “you may be arrested” while the other part commanded that law enforcement officials “shall use every reasonable means to enforce this restraining order. [They] shall arrest….” The court made the restraining order permanent, but after which the husband abducted the Gonzales’ three children while they were playing outside.[104]
When Mr. Gonzales realized what had happened, she called the police, upon their arrival showed a copy of the restraining order, and she asked them to retrieve her children.[105] The police told her there was nothing they could do at the time and to call back later, and she did call back two other times later in vain.[106] Unable to contain herself, Ms. Gonzales checked her husband’s apartment and called the police for a fourth time.[107] When no officer arrived, she went to the police station and filed an incident report.[108] In the early morning hours, the husband arrived at the police station and opened fire with the semiautomatic handgun he had purchased that evening.[109] He was killed in the cross-fire, effectively committing suicide.[110] The police then found the bodies of the three children in the back of his truck; they were all shot in the head.[111]
The Court held that a restraining order did not constitute a protected property interest under the Due Process Clause because the order did not fit within the definition of a property interest.[112] The Court held that to have a property interest one must have a “legitimate claim of entitlement” to the property interest.[113] How does one have a legitimate claim of entitlement to a restraining order? Courts have tried to answer this, even though the Supreme Court in the Gonzales case does not answer it sufficiently. There Court requires an “independent source” [114] that is created by a State law[115] for an individual to possess an entitlement in a property interest.
Roth is instructive on the definition of a property interest. In Roth, a teacher, who is not tenured and has a contract for a single academic year, is told without reason that he will not be rehired for the next academic year.[116] The teacher brought an action alleging that the university violated his procedural due process right because the university failed to inform him of why the university was not rehiring him.[117] The Court held that the teacher did not have a property interest in being rehired because he was not tenured nor was he terminated during the term of his contract.[118]
The Court describes a property interest as one that can take many forms[119] and may extend “well beyond actual ownership of real estate, chattels, or money.”[120] However, a property interest is “more than an abstract need or desire.”[121] The property interest must be founded in more than the Constitution because property interests “are not created by the Constitution.”[122] Thus, an independent source must create the property interest for one to have an entitlement to it.[123] Therefore, the teacher did not have a property interest because he only desired that he had the property interest, but neither State law nor a contract founded the desired property interest.
Similarly, the Court held that an individual does not have a property interest in a restraining order because there is no foundation for the entitlement. This holding seems counterintuitive because the message the Court should be trying to convey to the public is that a restraining order is not merely a piece of worthless paper. However, intentionally or not, this is the message the Court has sent. As a result, a victim cannot hold the State liable for any injuries that the State could have averted.[124]
A. The Definition of “Shall”
The Court also limits seemingly mandatory statutes, which are mandatory via its language and legislative intent. The Court held that a provision that merely states that law enforcement “shall” do something does not make it mandatory absent “some stronger indication”[125] because law enforcement traditionally has discretion in determining whether to arrest an aggressor.[126] The discretion that the Court finds is the key to nullifying the plain meaning of the word “shall.”
The Court attempts to clarify what a “stronger indication” would be by saying that even a mandatory arrest would not confer a property interest.[127] The Court points out that an entitlement to a mandatory arrest is too “vague” to confer a property interest because the aggressor may not be at home or the judge may decide not to issue a warrant.[128] Thus, even when a State creates mandatory arrests, discretion still is indicated which nullified the mandatory nature of the word “shall.” The Court’s example of mandatory arrest as an attempt to clarify what a “stronger indication” is becomes vague and nearly impossible to discern.
In the past, the plain meaning of “shall” was evident by its common usage and understanding.[129] In fact, the Supreme Court of Colorado held that the word “shall” is the antithesis of discretion or choice because it involves a mandatory connotation.[130] In other cases, the Court has held “shall” to be a signal of mandatory intent.[131] The Court recognizes in Lexicon Inc. v. Milberg Weiss Bershard Hynes & Lerach that the term “shall” “creates an obligation impervious to judicial discretion” and that unless there is indication to the contrary, the statutory instruction is mandatory. [132] The Court takes upon itself to describe the correct interpretation of “shall” as its “job.”[133] By correctly interpreting the world “shall” in a statue with clear intent for the word to be mandatory, the Court has “to give effect to this plain command.”[134] The Court in Gonzales appears to hold the direct opposite of its precedent by holding that the world “shall” is discretionary absent a “stronger indication.”[135]
The Court in Gonzales sets aside the common definition of “shall” without an explanation.[136] Many criticize the court on their willingness to change the plain meaning of “shall.” “The word ‘shall’ is mandatory, not precatory, and its use in a simple declarative sentence brooks no contrary interpretation.”[137] If the word “shall” leaves some discretion to the police, it should not automatically render mandatory enforcement void.[138] Since Gonzales, many fear that protective orders are useless because an officer does not have to enforce it. The Gonzales Court does not suggest in dicta what a stronger indication would be. This is especially worrisome given the nature of the legislative history in the statute in Gonzales, which clearly demonstrates that “shall” means a mandatory enforcement.”[139]
Justice Breyer, in his dissent, criticizes the Court’s willingness to overturn the legislature, even when the diction is clearly defined by legislative intent and plain meaning.[140] Justice Breyer also reminds the Court that “Congress, not the courts, must remain primarily responsible for striking the appropriate state/federal balance.”[141] As Justice Breyer alludes to, the Gonzales holding is an effort to shield State actors from liability at the expense of barring relief to a victim even when a statute’s plan language and legislative history would justify a different holding.[142] The government’s has a duty to do what is deemed “necessary to protect” its citizens; however, Gonzales shows that the government is more interested in protecting itself.[143] The Court further protects itself by discussing and establishing qualified immunity for officers. The only exception that the Court discusses is the public duty doctrine, which has a high burden for a victim.
B. Qualified Immunity: Creating a Shield Out of a Badge
A State actor may assert qualified immunity even when the State actor violated a federal right in a section 1983 action.[144] Qualified immunity creates a shield from suit when a State official, often law enforcement officers, violates “clearly established statutory or constitutional rights” that a reasonable person would know of based on the facts in the complaint.[145] Furthermore, the officer had to violate the right in a way that was objectively unreasonable as proven by the plaintiff, who is most often the victim.[146] This three-part test is the only thing that an officer must meet to qualify for immunity. Even so, not all officers are entitled to qualified immunity.
For an officer to claim qualified immunity, he or she must have performed a discretionary function at the time of the alleged violation.[147] However, given the Gonzales holding, nearly any action is discretionary, even if the controlling statute appears to be mandatory. Additionally, if an action is within the officer’s duties, the court deems it discretionary.[148] As such, an officer has very little to prove besides the initial three-part test. Furthermore, the victim is the one who bears the burden of demonstrating that an officer is not entitled to a qualified-immunity defense.[149]
Officers have the opportunity to use qualified immunity in many types of situations. One of the most prevalent situations is when an officer makes an arrest, which the aggressor does not believe was warranted.[150] An officer is entitled to qualified immunity in those situations if he or she can prove that he or she had arguable probable cause, which is a lower standard than actual probable cause.[151] Arguable probable cause simply means that a reasonable officer would believe that the arrest was lawful, reasonable arrest.[152] Thus, even when a mistake is made and actual probable cause does not exist, an officer may be immune from action and thereby, immune from responsibility.
In Guthrie, a mother called officers when she realized that the father had her two daughters in violation of a protective order.[153] Officers went into the building where the father was with the children and spoke to the father.[154] The officers were not going to arrest the father for violating the protective order because he gave the children back.[155] However, the father made a derogatory comment to his youngest daughter.[156] At this point, officers arrested the father for violating the protective order and for disorderly conduct.[157]
The father brought an action against the officers, but the officers asserted qualified immunity. The court held that the officers reasonably could have believed that the arrest was lawful; therefore, the officers had arguable probable cause.[158] Thus, the court held that the officers were entitled to qualified immunity.[159] Because officers are often entitled to qualified immunity, victims, and at times aggressors as in the above example, are without a remedy against an officer.
C. The Public Duty Doctrine
One way that the Court allows a victim to have a remedy against the State or a State actor, including officers, is through the public-duty doctrine’s exception. The public duty doctrine shields the sate “from tort liability arising out of discretionary governmental actions that by their nature are not ordinarily performed by private persons.”[160] As a result, officers use the public duty doctrine, like all of the other “exceptions” discussed, to shield themselves from legal action and thus, legal responsibility. The public duty doctrine recognizes law enforcement’s duty to protect the public in general, not any specific individual.[161] The public duty doctrine is directly applicable to cases where officers fail to protect the holder of a protective order because the officer fails to protect the victim from the harm of a third party, not from himself or herself.[162]
For instance, a woman has a protective order against her husband who has threatened to kill her on several occasions, including breaking into the marital home and shooting a 9mm into an empty bedroom.[163] The sheriff’s office learns of the husband’s admittance into the hospital but take no action to detain him.[164] The sheriff’s office takes him into custody but releases him on bond hours later on two separate occasions.[165] On four occasions, the officers from the sheriff’s office told the woman that the office would protect her, including helping her pack to move on two occasions.[166] The sheriff’s office failed to protect her and failed to enforce the protective order when the husband shot the woman four times when she was on her way to work; he then shot himself.[167] The court held that because the promises were no more than words of assurance and comfort, the promises were not specific enough to subject the officer to an exception of the public duty doctrine.[168] Thus, the court granted the officer’s Motion to Dismiss the claim against them.[169]
However, there are exceptions to the public duty doctrine where a victim may hold an officer liable in the event that the officer did not protect the victim. This exception is known as the “special duty doctrine.”[170] The broad category of exceptions is when a “special duty” exists between the victim and the officer or State actor.[171] A special duty is created in one of three ways, but only one of these ways must be met for the exception to prevail.[172] The ways are as follows: (1) when an officer promises to protect an individual in a specific way, does not protect the individual, and then the individual suffers because he or she relied on the promise; (2) when a special relationship is created;[173] or (3) by statute if the statute provides for a remedy, such as when a statute vests an individual with a private cause of action.[174] For instance, in the above example the court held that the specific promise to take away the husband’s weapons was specific enough to create an exception to the public duty doctrine.[175]
Another example of an exception can be found in Cockerham-Ellerbee.[176] An estranged husband violated a protective order on several occasions, including digging graves across the street from the family home.[177] Officers arrived on the scene and promised that they were going to arrest him and that they “would no longer have to worry about their safety.”[178] The officers followed the estranged husband down the street but did not arrest him nor did they advise the woman of his non-arrest.[179] Later, the estranged husband broke into the family home and fatally stabbed the woman’s daughter and then stabbed her multiple times.[180] The court held that considering the “attendant circumstances”[181] the promise that the officers made to the victim were sufficient to create an exception to the public duty doctrine.[182]
As a result, a victim is not in control of whether he or she has a remedy under the public duty doctrine. Additionally, an officer may assert qualified immunity in light of an exception to the public duty doctrine.[183] Thus, the public duty doctrine is extremely narrow, the exception afforded to it by the special duty doctrine is a small and hard to reach exception, and even if the exception exists, it still may not be enough for a victim to prevail.
Thus, an officer that failed to protect an individual with a protective order is often not responsible from his or her actions. Because the officer is immune from legal action, thus absolved from responsibility, a victim or his or her eState has no redress. The victim is often remediless if he or she brought a due process claim. The Court effectively dismantled a form of relief for victims and has re-victimized them by doing do. A victim bears the burden of proving that he or she fits into an exception and will often relive their terrifying experiences in the process. The dismantling of due process as a remedy has left victims with two other options: an equal protection claim or an ordinary negligence claim.
III. Equal Protection
One option that victims have to find redress against a State that failed to protect him or her is an equal protection claim under section 1983. However, an equal protection claim is difficult to prevail under because the State may assert a rational basis for discrimination[184] or statistical data may not exist.[185] In the nearly ninety percent (90%) of domestic violence cases the male is accused of battering the female.[186] There are two types of equal protection claims that may be brought: (1) a gender-based claim and (2) a membership-class claim.[187]
Each type of claim has a different level of scrutiny.[188] A gender-based claim rises to intermediate scrutiny because it is not a gender-neutral analysis; however, a membership-based claim is merely a rational-basis test.[189] A rational-basis test is the lowest level of scrutiny and the State only needs to assert that the discrimination is for a rationally related reason to further an important State objective.[190] For example, the State in Cellini puts forth several justifications that the court deems to meet the rational basis test of the membership-class claim.[191] The justifications that the State asserted were that (1) marital issues are better resolved outside of the criminal court, (2) the government needs flexibility to utilized all of its resources, and (3) because of the emotional behavior in domestic violence cases, the government must allow its officers to behave accordingly.[192]
As a result, a gender-based claim should be easier for a victim to prove because of the higher level of scrutiny. However, to prove a gender-based claim a victim must still show that (1) the police treat domestic violence cases differently than a normal battery victim, (2) discrimination against women was the motivating factor, and (3) the policy of treating domestic violent cases differently injured the victim.[193]
One of the only ways that victims will succeed in an equal protection claim is when they bring in statistical evidence and individual arrest records.[194] The records are not requirements, but without the statistics, a finder of fact will not usually infer a discriminatory motive.[195]
Often statistics are difficult to obtain because a sheriff’s office will not voluntarily release the data.[196] The collection of data will discourage a female victim from seeking a remedy, and in the event that she proceeds without collecting the data, the court will rule against her. Furthermore, an officer may assert qualified immunity against an equal protection claim.[197] Qualified immunity will defeat a valid equal protection claim and thus absolve the officer of responsibility. As a result of the difficulties associated with an equal protection claim, many victims are not successful in them. For a victim to find a remedy in equal protection, the victim must collect a lot of data and then refute a qualified immunity claim. Thus, victims find that recovering under an equal protection claim is difficult.
IV. Negligence
The final form of relief that a victim may seek is through an ordinary negligence tort claim. In these cases, the victims must show all of the normal elements of negligence: duty, breach, causation, and damages.[198] The difficult element to prove is duty because a victim must show that the defendant owed the victim a duty that was not a duty owed to the public in general.[199] Thus, the public duty doctrine usually bars relief for a victim when the victim asserts an ordinary negligence claim.[200] Furthermore, an officer may assert any of the other claims to bar action against him or her, such as qualified immunity.[201] Therefore, an ordinary negligence claim will not usually grant a remedy to a victim and is useless as a claim.
V. Florida Statutes
Florida is one State where the legislature should reexamine its statutes, specifically in Chapter 741. The chapter begins by defining domestic violence[202] and proceeds to describe mandatory minimums for a conviction of domestic violence beginning at five days.[203] Once these five day sentences are mandated, the legislature makes clear that “criminal prosecution shall be the favored method of enforcing compliance with injunctions for protection against domestic violence. . . .”[204] The legislature also demands a “thorough investigation of the defendant’s history. . . .” before first appearance.[205]
The first problem with this statute is that it is unrealistic. Prosecutors do not have the time or the resources to dig into every aggravator’s background prior to first appearance. Prosecutors often get the cases for a first appearance the day of the first appearance and prosecutors do not have time to shuffle through all of the files, determine who is a violator, run a background check on them, and then record it to present at first appearance. The State legislature created a statute that was doomed from the beginning.
The legislature further creates a problem for itself and as a result, its prosecutors, in the “batterers’ intervention program.”[206] The program seems to be well intended by the legislature to try to prevent the “disturbingly high” amounts of domestic violence.[207] However, the way that the legislature set up the program is worrisome because of conflicting language. In one statute the legislature says that “the court shall order that the defendant attend a batterers’ intervention program as a condition of probation.”[208] This seems to mandate the batterers’ intervention program by the courts. However, another statute merely requires that the court “consider requiring the perpetrator to complete a batterers’ intervention program.”[209] The legislature’s conflicting language is confusing, especially in light of the Gonzales holding that “shall” is not mandatory without a stronger indication.[210] Expanding the Gonzales holding into these statutes, the court does not have to mandate the program , and as a result, the legislature has not created a program that will reach all domestic violence aggressors.
Similarly, the legislature grants broad discretion to law enforcement officers when domestic violence has occurred.[211] The legislature intends to create a partially mandatory outlook on police conduct by saying that “the officer shall handle the incident pursuant to the arrest policy. . . .”[212] However, the legislature, according to Gonzales, automatically negates any mandatory reading by saying, “whether or not an arrest is made . . . .”[213] This simple phrase indicates that law enforcement officers have discretion on whether to effectuate an arrest on the alleged aggressor. Thus, any type the word “shall” is used in the statute,[214] the word does not possess a mandatory nature.
Finally, the statute that directly addresses violations of protective orders, or as the Florida legislature calls them “injunction[s] for protection against domestic violence,”[215] does not sufficiently address the potential gravity of the violation. The statute provides that in a non-arrest situation, the clerk “shall” assist the victim in creating an affidavit, which the clerk then forwards to the State attorney and law enforcement.[216] The astonishing part occurs in the twenty days that the legislature allotted law enforcement to “complete their investigation.”[217] In the worst-case scenario, a victim fears for her life, living each moment unsure of whether the aggressor will barge in and steal her life away. Twenty days is an excruciating long time for a victim who is living in fear. Finally, the State attorney is afforded thirty days to file charges against the aggressor.[218] While this is not as egregious because the State attorney is not the first line of defense for the public, there are times when the aggressor accumulates additional charges, in escalating intensity, in those thirty days.[219] Overall, Florida has several major flaws in its statutory language that leads to aggressors harming its residents when the legislature could afford its residents more protection.
VI. Recommendations and Conclusion
The State’s burden for protecting its residents has increased since the DeShaney and Gonzales holdings.[220] However, the State legislatures may work around the difficulties imposed by the Court to create adequate remedies for victims. Legislatures should take the initiative to review each chapter of the statutory code every other year. This author suggests that the responsibility be broken up into committees and that each committee be allotted thirty days to review the chapter, find conflicting language, and try to revise any sections that need to be revised in light of new decisions by the judiciary. This may seem like an extraordinary feat, but the benefits out weight the costs because the State laws will be up to date with society and its expectations. If the legislature finds either the two-year review too close in time to make any substantial changes, or if the committees find the thirty-day constraint too restrictive, then the legislature should allow an extension either by a majority vote or by a special request in writing.
The legislature should attempt to strip discretion from its statutes as to allow the term “shall” to be applied in its plain meaning. One way to do this is to create mandatory arrests. As Gonzales notes, mandatory arrests will not create a property interest in enforcing a protective order.[221] However, mandatory arrests will afford an inverse, immediate protection to victims of domestic violence. Additionally, mandatory arrest statutes make an aggressor less likely to attack again; sixty-seven percent (67%) of aggressors that did not receive any jail time committed another act of violence at least one other time, whereas a mere twenty-three percent (23%) of aggressors that received jail time committed another act of violence.[222] The presumptive reason behind the vast difference stems from the psychological effect that an arrest creates; the aggressor is not above the law and does not control the law. Furthermore, because a mandatory arrest statute incarcerates an aggressor so early in the legal process, he is not afforded the opportunity to try to control the process, which is the common thread among most domestic batterers.
State legislature may also want to employ procedures that they have already attempted to create. For instance, in Florida, the legislature should create a way for the State attorney to run an investigation of the aggressor’s history quickly and effectively. The idea, while not original, would greatly help the court to understand the signs of a potential killer in its presence. Thereby, the history of the aggressor would afford a victim a great benefit by putting the court on notice as to the severity of the situation, upfront, before bail is even set. A tool exists that statistically predicts the severity of the situation.[223]
The Ontario Domestic Assault Risk Assessment (hereinafter “ODARA”) processes an aggressor’s information and predicts whether the aggressor is prone to repeated violence, which will eventually lead to murder.[224] The ODARA focuses on an aggressor’s past warning signs, such as: threat or fantasies of homicide or suicide, possession of a weapon, depression, a feeling of “ownership” over the partner/victim, prior police involvement, and any hostage situations.[225] If the State attorney possessed a tool like ODARA then the prosecutor may be able to assess the aggressor quickly and efficiently before appearing at first appearances, as required by Florida statute.
The final recommendation to help protect victims and provide a remedy for them is to follow some jurisdiction’s example by creating a domestic violence court.[226] The creation of these courts may not actually deter violence, but they would provide a closer look on victim situations and a watchful eye on aggressors.[227] Additionally, domestic violence courts would create the opportunity for the judiciary to react quickly when an aggressor violates a protective order, which would lead to more lives protected by the legislature.[228] The creation of a domestic violence court would not create a property interest in the enforcement of protective orders nor would it change any of the difficult to reach exceptions and claims, but the creation of a domestic violence court would allow a victim the right to be heard more quickly and in a more protected manner.
In conclusion, a victim may still have a remedy even though the Court stripped any due-process claim, equal protection has high standard that a victim will hardly reach, and any negligence claim is moot due to qualified immunity and the public duty doctrine. The State legislatures must work harder to protect victims and their rights by protecting victims’ remedies. Without an adequate remedy, a victim is victimized initially by the aggressor and then again by the state. Residents expect their government to protect them, and the legislature needs to start living up to voters’ expectations.
[1] Mary Margaret Giannini, Redeeming an Empty Promise: Procedural Justice, The Crime Victims’ Rights Act, and the Victim’s Right to be Reasonably Protected from the Accused, 78 Tenn. L. Rev. 47, 48 (2010).
[2] Id.
[3] Id.
[4] Tritia L. Yuen, No Relief: Understanding the Supreme Court’s Decision in Town of Castle Rock v. Gonzales Through the Rights/Remedies Framework, Am. U. L. Rev. 1843, 1849 (2006).
[5] Mandeep Talwar, Improving the Enforcement of Restraining Orders After Castle Rock v. Gonzales, 45 Fam. Ct. Rev. 322, 323 (2007).
[7] Tritia L. Yuen, supra note 4, at 1872-73.
[8] Often this note will refer to a victim as a female. The reasoning behind this is that the vast majority of victims are female and not male. This referencing should not take away from this author recognition that there are male victims as well.
[9] Mandeep Talwar, supra note 5, at 324.
[10] Id.
[11] Id.
[12] The Cycle of Abuse, available at http://www.thesafespace.org/the-basics/relationships-101/the-cycle-of-abuse/?gclid=CNmH0_eam6oCFYgW2godrwINyQ. Last visited July 24, 2011.
[13] Id.
[14] Id.
[15] As known by this author’s person experience as a certified legal intern for the State Attorney’s Office of the 7th Judicial Circuit during the Summer of 2011.
[16] The Cycle of Abuse, available at http://www.thesafespace.org/the-basics/relationships-101/the-cycle-of-abuse/?gclid=CNmH0_eam6oCFYgW2godrwINyQ. Last visited July 24, 2011.
[17] Id.
[18] Tritia L. Yuen, No Relief: Understanding the Supreme Court’s Decision in Town of Castle Rock v. Gonzales Through the Rights/Remedies Framework, Am. U. L. Rev. 1843, 1873 (2006).
[19] Jones v. Jones, 32 So. 3d 772, 744 (Fla. 2d Dist. Ct. App. 2010).
[20] Id. at 774; Gill, 50 So. 3d at 774.
[21] Gill v. Gill, 50 So. 3d 772, 775 (Fla. 2d Dist. Ct. App. 2010).
[22] See, e.g., Martin v. Colonna, 217 P.3d 1147, 1150 (UT App. 2009).
[23] Black’s Law Dictionary (9th ed. 2009).
[24] Smith v. Jones, 915 N.E. 2d 260, 265 (Mass. App. Ct. 2009).
[25] Id.
[26] Id.
[27] See DeShaney v. Winnebago County Dep’t of Soc. Services, et al., 489 U.S. 189 (1989); Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).
[28] Mandeep Talwar, Improving the Enforcement of Restraining Orders After Castle Rock v. Gonzales, 45 Fam. Ct. Rev. 322, 325 (2007).
[29] Burella v. City of Philadelphia, 501 F.3d 134, 139 (3d Cir. 2007).
[30] 42 U.S.C. § 1983 (1996).
[31] See id.
[32] See id.; Monroe v. Pape, 365 U.S. 167, 183 (1961) (holding that a victim may sue the police via the section 1983 and the 14th Am.); Monell v. Dep’t of Soc. Services of New York, 436 U.S. 658, 690 (overruling part of Monroe and holding that a victim may sue a municipality because it falls within the definition of a person under section 1983).
[33] See Deshaney v. Winnebago County Dep’t of Soc. Services, et al., 489 U.S. 189 (1989).
[34] See Town of Castle Rock v. Gonzales, 545 U.S. 758 (2005).
[35] See Cellini v. City of Sterling Heights, 856 F.Supp. 1215 (E.D. Mich. 1994).
[36] Burella v. City of Philadelphia, 501 F.3d 134, 139 (3d Cir. 2007); 42 USCA § 1983.
[37] Patterson v. Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)).
[38]489 U.S. 189 (1989).
[39] Town of Castle Rock v. Gonzaeles, 545 U.S. 748 (2005).
[40] See DeShaney, 489 U.S. 189; Gonzales, 545 U.S. 748.
[41] Id.
[42] DeShaney, 489 U.S. at 196.
[43] Id. at 203.
[44] Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997).
[45] Albright v. Oliver, 510 U.S. 266, 271-72 (1994).
[46] See id.
[47] DeShaney, 489 U.S. at 201-02.
[48] Id. at 193.
[49] Id. at 192.
[50] Id. at 192.
[51] Id. at 192.
[52] Id. at 192-93.
[53] Id. at 191.
[54] Mary Margaret Giannini, Redeeming an Empty Promise: Procedural Justice, The Crime Victims’ Rights Act, and the Victim’s Right to be Reasonably Protected from the Accused, 78 Tenn. L. Rev. 47, 55 (2010).
[55] DeShaney, 489 U.S. at 195.
[56] Gardner v. Luzerne County, 645 F.Supp.2d 325, 333 (M.D. PA 2009).
[57] DeShaney, 489 U.S. at 197.
[58] Burella v. City of Philadelphia, 501 F.3d 134, 141 (3d Cir. 2007).
[59] See DelCastillo v. City and County of San Francisco, No. C 08-3020 PJH, 2010 WL 1838939, slip op. (N.D. Cal. May 3, 2010). In DelCastillo, the victim called the police during a dispute with his girlfriend. Id. at *1. When the officers arrived the fighting ceased and interviews were taken of the two occupants of the dwelling. Id. The officers asked the girlfriend to leave the house. Id. Less than two hours later, the victim called the police again because the girlfriend was back at the house. Id. At this point the story diverges, and while this is not a case about a protective order, the victim had the right to obtain one against his girlfriend, as police informed him. Id. This situation could easily have been one where the victim already possessed a protective order against the aggressor.
[60] Compare Brooks v. Knapp, 221 Fed. App’x 402, No. 06-1352, 2007 WL 725741 (6 Cir. March 7, 2007). In Brooks, officers detained aggressor temporarily, which broke up the fight, but then the officers released him. The officers did not take any actions to ensure that the aggressor was restrained or calm, and as a result, the victim was shot hours later.
[61] Id. at 202.
[62] See id.
[63] Id. at 197-200.
[64] Id.; Gardner, 645 F.Supp. 2d at 334.
[65] Gardner v. Luzerne County, 645 F.Supp. 2d 325, 334 and 336 (M.D. Pa. 2009).
[66] DeShaney, 489 U.S. at 200.
[67] Id. at 199.
[68] See Paul A. Clark, Mandatory Arrest for Misdemeanor Domestic Violence: Is Alaska’s Arrest Statute Constitutional?, 27 Alaska L. Rev. 151 (Dec. 2010).
[69] DeShaney, at 199-00.
[70] Id.
[71] Id.
[72] Gardner, 645 F.Supp. 2d at 335.
[73] See DeShaney, 489 U.S. at 202.
[74] Id. at 200.
[75] Id. (internal quotations omitted).
[76]See Paul A. Clark, Mandatory Arrest for Misdemeanor Domestic Violence: Is Alaska’s Arrest Statute Constitutional?, 27 Alaska L. Rev. 151 (Dec. 2010).
[77] Id. at 164.
[78] See id.
[79] Id. at 156.
[80] Gardner, 645 F.Supp. 2d at 333 (citing DeShaney, 489 U.S. at 201-02.).
[81] Id. at 334; Burella v. City of Philadelphia, 501 F.3d 134, n. 17 (3d Cir. 2007).
[82] Id.
[83] Gardner, 645 F.Supp. 2d at 334.
[84] Id. at 338.
[85] Estate of Amos v. City of Page, Arizona, 257 F.3d 1086,1089 (9th Cir. 2001).
[86] Id.
[87] Id. at 1089-90.
[88] Id. at 1092.
[89] Id.
[90] Burella, 501 F.3d at 147-48.
[91] Gardner, 645 F.Supp. 2d at 338.
[92]200 Fed. App’x 430, No. 05-6532, 2006 WL 2661144, **1 (6th Cir. Sept. 15, 2006).
[93] Id.
[94] Id.
[95] Id.
[96] Id. at **5.
[97] Zinermon v. Burch, 494 U.S. 113, 125 (1990).
[98] 545 U.S. 748 (2005).
[99] Id. at 750-51.
[100] Id. at 755.
[101] Mary Margaret Giannini, Redeeming an Empty Promise: Procedural Justice, The Crime Victims’ Rights Act, and the Victim’s Right to be Reasonably Protected from the Accused, 78 Tenn. L. Rev. 47, 55 (2010).
[102] Gonzales, 545 U.S. at 751.
[103] Id.
[104] Id. at 751-52.
[105] Id.
[106] Id.
[107] Id.
[108] Id. at 753-54.
[109] Id. at 754.
[110] Id.
[111] Id.
[112] Id. at 756; Mandeep Talwar, Improving the Enforcement of Restraining Orders After Castle Rock v. Gonzales, 45 Fam. Ct. Rev. 322, 327 (2007).
[113] Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005) (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972)).
[114] Tritia L. Yuen, No Relief: Understanding the Supreme Court’s Decision in Town of Castle Rock v. Gonzales Through the Rights/Remedies Framework, Am. U. L. Rev. 1843, 1852 (2006).
[115] Bd. Of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
[116] Id. at 564.
[117] Id.
[118] Id. at 576-77.
[119] Id. at 576.
[120] Id. at 571.
[121] Id. at 577.
[122] Id.
[123] Id.
[124] DeShaney v. Winnebago County Dep’t of Soc. Services, 489 U.S. 189, 196-97 (1989).
[125] Town of Castle Rock v. Gonzales, 545 U.S. 748, 760-61 (2005).
[126] Burella v. City of Philadelphia, 510 F.3d 134, 145 (3d Cir. 2007).
[127] See Gonzales, 545 U.S. at 763-66.
[128] Id. at 763-64.
[129] L. Yuen, No Relief: Understanding the Supreme Court’s Decision in Town of Castle Rock v. Gonzales Through the Rights/Remedies Framework, Am. U. L. Rev. 1843, 1857 (2006).
[130] Id.
[131] See Lexicon Inc. v. Milberg Weiss Bershard Hynes & Lerach, 523 U.S. 26 (1998); City of Chicago v. Morales, 527 U.S. 41 (1999).
[132] 523 U.S. 26, 35(1998).
[133] Id.
[134] Id.; See Morales, 527 U.S. at 61-62 and n. 32 (holding that a loitering statute “means what it says”).
[135] Gonzales, 545 U.S. at 760-61.
[136] L. Yuen, No Relief: Understanding the Supreme Court’s Decision in Town of Castle Rock v. Gonzales Through the Rights/Remedies Framework, Am. U. L. Rev. 1843, 1863 (2006).
[137] Burella v. City of Philadelphia, 501 F.3d 134, 142 (3d Cir. 2007).
[138] L. Yuen, supra note 134, at1856.
[139] Id.
[140] Id. at 1868.
[141] Id.
[142] Id. at 1867and 1978-79.
[143] Id. at 1868.
[144] Burella v. City of Philadelphia, 501 F.3d 134, 139 (3d Cir. 2007).
[145] Id.
[146] Guthrie v. McMahan, No. 3:08-CV-446, 2010 WL 4941662, *5 (E.D. Tenn. Nov. 30, 2010).
[147] Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004).
[148] Id.
[149] Id.
[150] See Crosby, 394 F.3d 1328; Guthrie, No. 3:08-CV-446, 2010 WL 4941662.
[151] Crosby, 394 F.3d at 1332.
[152] Guthrie, No. 3:08-CV-446, 2010 WL 4941662, *6.
[153] Id. at *1.
[154] Id. at *2.
[155] Id.
[156] Id.
[157] Id.
[158] Id. at *6-*7.
[159] Id. at *9.
[160] Cockerham-Ellerbee v. Town of Jonesville, 626 S.E. 2d 685,688 (N.C. Ct. App. 2006) (citations omitted).
[161] Id.
[162] Id.
[163] EState of McKendall v. Webster, 672 S.E. 2d 768, 769 (N.C. App. 2009).
[164] Id.
[165] Id. at 769-70.
[166] Id.
[167] Id. at 770.
[168] Id. at 771.
[169] Id. at 772.
[170] Mary Margaret Giannini, Redeeming an Empty Promise: Procedural Justice, The Crime Victims’ Rights Act, and the Victim’s Right to be Reasonably Protected from the Accused, 78 Tenn. L. Rev. 47, 59 (2010).
[172] Id. at 690.
[173] Supra, p.18, II. A. 1. The Special Relationship Exception.
[174] Cockerham-Ellerbee, 626 S.E. 2d at 689.
[175] EState of McKendall, 672 S.E. 2d at 772.
[176] 626 S.E. 2d 685.
[177] Id. at 686-87.
[178] Id. at 687.
[179] Id.
[180] Id.
[181] Id. at 689.
[182] Id. at 690.
[183] Tritia L. Yuen, No Relief: Understanding the Supreme Court’s Decision in Town of Castle Rock v. Gonzales Through the Rights/Remedies Framework, Am. U. L. Rev. 1843, 1873 (2006).
[184] See Cellini v. City of Sterling Heights, 856 F.Supp. 1215, 1221-22 (E.D. Mich. 1994).
[185] Id. at n. 7.
[186] Id. at n. 4.
[187] See id.
[188] Id. at 1220.
[189] Id.
[190] Id. at 1221-22.
[191] Id.
[192] Id.
[193] Burella v. City of Philadelphia, 501 F.3d 134, 148 (3d Cir. 2007); Brown v. Grabowski, 922 F.2d 1092, 1101 (3d Cir. 1990) (citing Hynson v. City of Chester, 864 F.2d 1026 (3d Cir. 1998)).
[194] Burella, 501 F.3d at 149.
[195] Id.
[196] See Cellini, 856 F.Supp. at n. 7.
[197] See id. at 1122-23.
[198] See Patterson v. Deeb, 472 So. 2d 1210, 1214 (Fla. 1st Dist. Ct. App. 1985).
[199] Cockerham-Ellerbee, 626 S.E. 2d at 687.
[200] Id. at 687-88.
[201] Id.
[202] Fla. Stat. Ann. § 741.28 (West 2003).
[203] Fla. Stat. Ann. § 741.283 (West 2001).
[204] Fla. Stat. Ann. § 741.2901 (2) (West 2011).
[205] Fla. Stat. Ann. § 741.2901 (3) (West 2011). “Prior to a defendant’s first appearance in any charge of domestic violence as defined in s. 741.28, the State Attorney’s Office shall perform a thorough investigation of the defendant’s history, including, but not limited to: prior arrests for domestic violence, prior arrests for nondomestic charges, prior injunctions for protection against domestic and repeat violence filed listing the defendant as respondent and noting history of other victims, and prior walk-in domestic complaints filed against the defendant. This information shall be presented at first appearance, when setting bond, and when passing sentence, for consideration by the court. When a defendant is arrested for an act of domestic violence, the defendant shall be held in custody until brought before the court for admittance to bail in accordance with chapter 903. In determining bail, the court shall consider the safety of the victim, the victim’s children, and any other person who may be in danger if the defendant is released.”
[206] Fla. Stat. Ann. § 741.32 (West 2001); Fla. Stat. Ann. § 741.2902 (g) (West 2003); Fla. Stat. Ann. § 741.281 (West 2003).
[207] Fla. Stat. Ann. § 741.32 (West 2001). The statute also has an alarming statistic in it: “one person dies at the hands of a spouse, ex-spouse, or cohabitant approximately every 3 day.”
[208] Fla. Stat. Ann. § 741.281 (West 2003).
[209] Fla. Stat. Ann. § 741.2902 (f) (West 2003).
[210] Town of Castle Rock v. Gonzales, 545 U.S. 748, 760-61 (2005).
[211] Fla. Stat. Ann. § 741.29 (2) (West 2000).
[212] Id.
[213] Id.
[214] The legislature uses the word “shall” twelve separate times in Fla. Stat. Ann. § 741.29 (West 2000).
[215] Fla. Stat. Ann. § 741.31 (West 2003).
[216] Id.
[217] Id.
[218] Id.
[219] As known by this author’s person experience as a certified legal intern for the State Attorney’s Office of the 7th Judicial Circuit during the Summer of 2011.
[220] Tritia L. Yuen, No Relief: Understanding the Supreme Court’s Decision in Town of Castle Rock v. Gonzales Through the Rights/Remedies Framework, Am. U. L. Rev. 1843, 1874 (2006).
[221] Town of Castle Rock v. Gonzales, 545 U.S. 748, 763-64 (2005).
[222] Mandeep Talwar, Improving the Enforcement of Restraining Orders After Castle Rock v. Gonzales, 45 Fam. Ct. Rev. 322, 328 (2007).
[223] Id. at 330. The tool outputs a high percentage if the aggressor has a strong risk of recidivism and a low percentage if the aggressor has a low risk of recidivism.
[224] Id. at 329-30.
[225] Id. at 329.
[226] Id. at 331 (noting that New York, Boston, and Miami already have domestic violence courts in place).
[227] Id.
[228] Id.
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