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Does Law Enforcement Have a Duty to Victims of Violence Against Women?

~ An Overview of 8 Key Legal Cases ~


Do Police Have a Duty to Act and Protect (U.S. Supreme Court)?
Case #1 - DeShaney v. Winnebago County (1989)
Case #2 - Castle Rock v. Gonzales (2005)

Do Prosecutors Have a Duty to Prosecute (U.S. Supreme Court)?
Case #3 - Imbler v. Pachtman (1976)
Case #4 - United States v. Armstrong (1996)

Two Circuit Court Decisions - Possible Post-DeShaney Pathways to Police Duty to Protect
Case #5 - Macias v. Ihde (Sonoma County Sheriff's Dept.) (2000),
9th Circuit
Case #6 - Okin v. Village of Cornwall (2009), 2nd Circuit

International Law, The Human Rights Framework - Do States Have a Duty to Victims of Violence Against Women?
Case #7 - Gonzalez v. Mexico (2009), Inter-American Commission on Human Rights
Case #8 - L.R. Petition for U.S. Asylum (2010), U.S. Homeland Security


Do law enforcement officers have a duty to act and to protect when responding to violence against women cases? Are prosecutors obligated to prosecute when there is sufficient evidence to do so? If a state law requires police to respond in one way or another to violence against women, are police then required to obey that law? Or, is law enforcement free to ignore and disregard violence against women as they see fit? And when law enforcement does not respond properly to violence against women, can women sue law enforcement for failing to respond and protect?

The following overview of 8 key legal cases gives a sobering view of the lawless ground on which victims of violence against women stand in relation to law enforcement today. Cases #1-4 are current controlling U.S. Supreme Court decisions on the questions. As you'll see, these cases hardly serve as a firm legal foundation on which women can hope to construct a law enforcement duty to act and protect. Quite the contrary, these Supreme Court cases frame a daunting legal barricade that serves mainly to protect law enforcement from any legal responsibility to protect the people.

Cases #5 & 6 are two recent U.S. Circuit Court cases, both of which give some suggestion of legal strategies U.S. women might pursue in a post-DeShaney world. And cases #7 & 8, one an international court case, and the other a U.S. asylum case, are built on the emerging human rights framework, which, to date, has proved to be the strongest legal foundation for supporting women's rights to protection and justice.

This then is where we stand. We've put this together in hopes it will make you fighting mad!


Do U.S. Police Have a Duty to Act and Protect?
(U.S. Supreme Court)

Case # 1 ~ DeShaney v. Winnebago County, Year 1989,
U.S. Supreme Court ~

Law enforcement has no duty to act or protect against third party violence, (violence not perpetrated by officials themselves).

Joshua DeShaney's Story: Four-year-old Joshua DeShaney was repeatedly the victim of his father's violence. Police and Illinois child welfare services were fully aware of the father's violence against Joshua and had early on taken Joshua into the state's custody. Illinois child welfare services later returned Jashua to the father. In numerous subsequent contacts with the father and child, the child welfare officials repeatedly saw and recorded evidence of continuing abuse of Jashua by the father. Despite knowing the danger Joshua was in, officials took no action. Then one day Joshua's father beat little Joshua so severely that Joshua suffered permanent brain damage and has had to spend the rest of his life in an institution.

The Legal Case: Joshua's mother sued Winnebago County officials for denying Joshua's 14th amendment constitutional rights to due process, claiming authorities denied Joshua's rights to liberty without due process. In 1989, the Supreme Court ruled 6 to 3 against Joshua, stating that the authorities have no constitutional obligation to act or protect Joshua from the father's violence just because they knew of the danger. The only thing that would impose responsibility on the state (the law enforcement officials) is if the authorities themselves had created the danger or the denial of liberty. Their inaction, the court ruled, did not create the danger or denial of liberty.

Justice Harry Blackmun wrote one of two dissenting opinions in the case. He began his dissent with two now famous words that have since been invoked repeatedly as a clarion against the continuing dire consequences of the DeShaney case ruling. "Poor Joshua!", he wrote. Justice William Brennan also wrote a dissent noting the court's, “failure to see that inaction can be every bit as abusive of power as action, that oppression can result when a state undertakes a vital duty and then ignores it.”

The Impact of DeShaney on Women: DeShaney is the ruling case in the U.S. today on the question of law enforcement's absence of a constitutional duty to act or protect. The decision has been particularly devastating to women. To be sure, DeShaney gives law enforcement carte blanch to ignore any American with impunity. But women are especially doomed by DeShaney. For women to get free of the rampant violence that at one point or another oppresses most women's lives, women need law enforcement to reliably act, and to act effectively. At the same time, the anti-women attitudes and structures that permeate law enforcement make violence against women cases most vulnerable to being brushed off, disregarded, or met with deliberate indifference by law enforcement officials. As long as law enforcement is free to respond as it pleases, women will continue to be disproportionately ignored, and the violence against women will rage on.

In the two decades prior to DeShaney women had been increasingly winning lower court rulings against law enforcement officials who withheld vital law enforcement responses from victims of violence against women. DeShaney brought that trend to a screeching halt.

Case #2 ~ Castle Rock v. Gonzales: Year 2005,
U.S. Supreme Court ~

Law enforcement has no duty to act or protect, even if the victim has a restraining order, and even if state law mandates that police make an arrest for restraining
order violations.

Jessica Gonzales Story: Jessica Gonzales had a restraining order protecting herself and her three girls against her abusive husband. When her husband abducted the three children, outside the terms of the restraining order, Jessica immediately and repeatedly pleaded with Castle Rock Police over the course of two days to enforce the restraining order. The police disregarded Jessica's pleas for help, despite her expressed desperate concerns for her children's safety. In the terrible end, the three children were found dead in the trunk of her husband's car.

The Legal Case: Jessica Gonzales sued Castle Rock Police, the city of Castle Rock, and three individual officers for denying her 14th amendment rights to due process. Gonzales hoped that two circumstances in her case would transcend DeShaney and trigger a police obligation to act. One, Gonzales had a restraining order protecting herself and her children from the husband. And two, a Colorado state law mandated that police make an arrest for restraining order violations.

The Supreme Court ruled 7 to 2 that in ignoring Gonzales' pleas for enforcement of the restraining order, police had not violated Gonzales' due process rights. Having exhausted remedy in the U.S., Gonzales has taken her case against law enforcement and against the U.S. to the Inter-American Commission on Human Rights, claiming the U.S. violated her rights to 'due diligence'. Due diligence, under international human rights law is a state's obligation to prevent, investigate, and prosecute human rights violations. The Inter-American Commission accepted the case and has held hearings, but has not, as of this writing, rendered it's decision.

The Impact of Gonzales on Women: In the Gonzales decision the U.S. Supreme Court delivered women a final stunning blow to any hope of soon establishing a police due process duty to victims of violence against women. The court left no room for remedy. Even if the victim has a restraining order, the court ruled, there is no law enforcement obligation to the victim. And even more alarming, even if state law requires police take action, the Supreme Court made brutally clear police are not violating a victim's rights if police fail to obey that law. In other words, all the many state laws we have passed in hopes of mandating through law that police respond better to violence against women, these laws are little more than wishful thinking.

For more information on the Gonzales Supreme Court case,
click here.

For Gonzales documents and updates on Gonzales' case in the international court, click here and scroll down the page.

Do U.S. Prosecutors Have an Duty to Prosecute?
(U.S. Supreme Court)

The enormous legal obstacles that remain in trying to establish police accountability in violence against women cases pale in comparison to the obstacles in establishing accountability for prosecutors who fail to prosecute. Absolute prosecutorial discretion is so deeply rooted in U.S. history and in Supreme Court rulings, that, at present, it is virtually impossible to hold prosecutors accountable even when prosecutors perpetrate gross illegal acts of misconduct, such as knowingly presenting false evidence in court, selectively prosecuting racial minorities, or withholding exculpatory evidence, etc. In short, as the law now stands, there isn't a hint anywhere in American law that one day women might hold prosecutors accountable for refusing to prosecute provable cases of violence against women. The following two cases are just a sample of Supreme Court cases that have repeatedly affirmed the strongest immunities for prosecutors from civil liabilities under even the most egregious prosecutorial misconduct.

Case #3: ~ Imbler v. Pachtman, Year 1976,
U.S. Supreme Court ~

Prosecutors have absolute immunity from civil liability for violating constitutional rights during their prosecutorial functions

The Imbler Story: Paul Imbler obtained his release from a murder conviction after discovering that prosecutors had withheld exculpatory evidence and provided false testimony during the prosecution of his case. Following the reversal of his murder conviction and his release, Imbler sued the prosecutors for denying his 14th amendment right to due process by knowingly presenting false evidence against him and withholding exculpatory evidence.

The Imbler Supreme Court Decision: The Supreme Court ruled that a prosecutor within the scope of his duties is absolutely immune from civil suits for violations of a defendant's constitutional rights, even if it can be shown that the prosecutor did so knowingly. The reason given by the court is that allowing such lawsuits would "disserve the broader public interest in that it would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system ...."

There was no dissenting opinion in Imbler! This ruling giving prosecutors absolute immunity for violating people's constitutional rights in the course of their prosecutorial functions is the lynchpin case in a doctrine that has been reaffirmed, and, in fact, broadened, in a number of Supreme Court cases since.

The Impact on Women: The Imbler decision, along with the many subsequent decisions that bolster Imbler, should be alarming to anyone who places even a sliver of value on justice and the rule of law. For the huge population of women, victims of violence, who are abandoned to that violence because prosecutors systematically fail to prosecute even when there is enough evidence to do so, you can see from Imbler and the next case that any hope of holding a prosecutor to account for their disregard of your rights to justice is futile at this time.

Because prosecutors are the most powerful of our law enforcement officials, and because violence against women cases are generally their least favored cases to prosecute, rampant unchecked violence against women will rage on until some check is put in place on prosecutorial powers to do as they please.

But what about systematic failure to prosecute, you may ask? See the following case.

Case #4: ~ United States v. Armstrong, Year 1996,
U.S. Supreme Court ~

Creates extreme burdens for proving selective prosecution, (not to mention the burden of proving selective non-prosecution)

The Armstrong Story: Christopher Armstrong and a group of African American defendants who had been charged with possessing crack cocaine attempted to sue prosecutors for denial of their 14th amendment rights to due process and equal protection. They claimed that prosecutors were practicing selective prosecution by disproportionately charging blacks with this crime in comparison to how prosecutors charged other races. Armstrong and the other defendants had asked the lower federal court to grant them discovery in the case, i.e. to mandate that the prosecutor turn over needed documents in the case so Armstrong could prove his case against the prosecutors. The prosecutors refused to cooperate with discovery requests.

The Armstrong Supreme Court Decision: While recognizing the abstract rights of people to be free from selective prosecution, the court denied Armstrong the right to discovery, and hence the right to proceed with the case. The Supreme Court ruled that before being granted discovery, a defendant claiming selective prosecution would have to prove that others similarly situated have not been prosecuted, and additionally, would have to prove that the prosecutors in charging Armstrong were motivated by racial prejudice. In making this ruling the court raised the bar of requirements so high as to make suing prosecutors for selective prosecution nearly impossible to prove.

Impact on Women: The Supreme Court ruling in Armstrong made no mention of selective non-prosecution, the issue that clearly has most significance to victims of violence against women. An example of selective non prosecution would be a prosecutor who won't file charges on rape cases because they believe most women who get raped are asking for it. Such a prosecutor would clearly be denying women's rights to equal protection of the law. But given the harsh barriers the court placed on anyone attempting to sue prosecutors for a selective prosecution claim, it doesn't take much of a leap to realize that courts would be even less prone to entertain claims of selective non-prosecution.

For more information on the enormous unchecked power of prosecutors and the consequences for women see:


Two Circuit Court Decisions: Possible Post-DeShaney Pathways to Police Duty to Protect

U.S. circuit courts are one level below the Supreme Court in the U.S. federal judicial system. Cases usually come before the circuit court as an appeal after one side or the other is unsatisfied with a lower federal district court decision. Rulings made by a circuit court, unless overturned by the Supreme Court, have the force of law in the group of states that are under the jurisdiction of that circuit court. There are 11 circuit courts in the U.S.

The following two circuit court decisions rule on police responsibilities. To our knowledge, there are no circuit court decisions indicating even a hint responsibility for prosecutors to prosecute.

Case #5 ~ Macias v. Ihde (Sonoma County Sheriff's Department), Year 2000, 9th Circuit Court of Appeals ~

Women have a right to sue for denial of equal protection when police provide inferior services to women victims of violence against women.

Maria Teresa Macias Story: Maria Teresa Macias had gone to Sonoma County Sheriff's on over 22 occasions seeking help with her physically and sexually violent husband. The Sheriff's deputies rebuffed her pleas every time. They never arrested her husband. They failed to investigate, discouraged Teresa from calling, and often didn't write reports. Teresa's husband ultimately shot Teresa in the head and killed her.

The Legal Case: Teresa's mother sued Sonoma County Sheriff's Department for denial of Teresa's 14th amendment right to equal protection of the law, as a women, as a Latina, and as a victim of domestic violence. The federal district court threw the case out claiming law enforcement had no duty to protect from third party violence. Teresa's mother appealed the case.

In July, 2000, the three judge 9th Circuit Court of Appeals panel rendered a unanimous decision that women do have a right to sue for denial of equal protection when police provide inferior services to women. This ruling establishes women's actionable (sueable) right to equal protection of the laws from law enforcement in the eleven western states under 9th circuit jurisdiction. The Sheriff's Department did not appeal the decision to the Supreme Court. The Macias case went to trial back in the federal district court where the Sheriff's Department made a mid-trial agreement to a one million dollar settlement with the Macias family.

Impact of Macias on Women: The Teresa Macias case points to a legal strategy by which women can hold police constitutionally liable for failing to respond properly to violence against women cases. The 9th Circuit ruling is particularly encouraging because it makes clear in the court's decision that a woman doesn't necessarily have to show any harmful consequences of the police inaction, such as murder or subsequent injury. The mere fact of the denial of equal protection, the decision says, is sufficient harm, in and of itself, for which to hold police accountable.

There are two caveats, however. One, the 9th circuit ruling applies only in the 11 western states covered by the 9th circuit federal courts. And second, in order to argue denial of equal protection, the plaintiff must show not just that police responded badly in her individual case, but additionally that the particular police department has a pattern and practice of responding badly in general to women. This may create a stiff burden on the plaintiff. However, neither the 9th circuit Macias decision, nor the subsequent federal court proceedings, clarified exactly what elements are needed to show a pattern and practice of denying women, (or victims of violence against women), a denial of equal protection.

No matter the potential difficulties, given the success of the equal protection legal strategy in both the Macias and subsequent Tempongko case when all other constitutional avenues since DeShaney have failed, it's surprising more women haven't sued police for denial of their 14th amendment rights to equal protection. Within months of the 9th circuit appellate decision in the Macias case, the family of domestic violence homicide victim Claire Tempongko filed a similar denial of equal protection claim in federal court against San Francisco Police. In 2004, San Francisco agreed to a half million dollar settlement to the Tempongko family.

  • For more information and documents on the Macias case click here.
  • For information on the Clair Tempongko case, click here.

Case #6 ~ Okin v. Village of Cornwall - on - the - Hudson Police Department, - Year 2009,
2nd Circuit Court of Appeals ~

Police can be held liable if they enhance the danger of private violence.

Michele Okin's Story: Over a period of 16 months, Michele Okin called Cornwall Police Department about repeated domestic violence beatings, stabbing, stalking, and threats by Roy Sears, her partner and father of their two children. Multiple police from the department variously failed to write reports, mocked Michele, failed to do all but cursory interviews of Sears, talked football with Sears instead, and failed to take action against Sears.

The Legal Case: Okin filed a lawsuit against Cornwall Police and four individual officers claiming they denied her 14th amendment right to due process and to equal protection. The 2nd circuit court ruled out her equal protection claim given Okin didn't submit evidence to support it. Key to Okin's due process claim is her holding that the officers were buddies with Roy Sears, that officers frequently hung out at the bar owned by Sears, and that officers talked football with him when responding to her calls. As such, the suit claimed, the officers added to the danger Sears posed to Okin. The 2nd circuit upheld Okin's right to sue police for denial of her due process rights, stating, "Although 'as a general matter... a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause,' DeShaney v Winnebago County..., state actors may be liable under 1983 if they affirmatively created or enhanced the danger of private violence."

The Impact on Women: The Okin decision doesn't blow open the door to remedy for the vast majority of women who are simply rebuffed by police who fail to act, nor does its force reach beyond residents of the 2nd circuit jurisdiction. Nonetheless, the decision in the Okin case suggests possible significant limits to the outright discretion of police officers to do as they please in responding to victims.

In writing their decision, the 2nd circuit carefully outlined some rather broad ways in which certain police responses, (such as buddying with the suspect), or lack of responses, (such as the officers' repeated failures to respond to a clearly dangerous situation), whether explicit or implicit, could be understood to be enhancing the danger to victims. Additionally, if the facts of the case were found to be true, the officers' behaviors could be understood to "shock the contemporary conscience".

On both points, the court concluded that the alleged police behaviors, if proved true, would constitute a violation of Okin's right to due process, even within the DeShaney strictures, and Okin's case against the police could proceed to trial. In the Okin court's written discussion the judges laid out extensive case precedents bolstering their arguments. As such, the Okin 2nd Circuit judges seem to be pointedly showing the ways in which victims can pierce the DeShaney barriers.

The discussion section of the 2nd circuit court decision in Okin is absolute must reading for any one searching for ways, post-DeShaney, to hold police accountable for failing to respond properly to violence against women cases.

The 2nd Circuit Court Okin decision can be seen here.


International Law - The Human Rights Framework -
Do States have a Duty to Victims of
Violence Against Women?

For a number of decades, international human rights law has been developing a legal standard of nations' 'due diligence' duties in human rights violations to prevent, investigate, and prosecute, whether those violations are perpetrated by state actors or by private actors. Three more recent developments have opened a path to establishing the due diligence obligations specifically in violence against women cases. The first has been the formalizing in international law of the fact that women's rights are human rights, and human rights are women's rights. The second, has been the formalizing in international law of the understanding that gender-based violence is a violation of women's human rights.

Together, these foundations bring women under the legal protections of all victims of human rights violations; the 'due diligence' obligation of nations to act with 'due diligence' to prevent, investigate, punish, and compensate acts of violence against women whether perpetrated by state or non state actors. The third development, occurring in only the last few years, are international court decisions in women's favor based on the 'due diligence' legal standard. Two of the more recent cases are summarized here.

Case #7 ~ Claudia Gonzalez y otras v. Mexico
(The Campo Algodonero Case), Year 2009,
Inter-American Commission on Human Rights ~

States have a 'due diligence' obligation to prevent, investigate, punish, and compensate in violence against women cases.

NOTE: Claudia Gonzalez of the Campo Algodonero case is not Jessica Gonzales of the U.S. Supreme Court Case. It can be particularly confusing because Jessica Gonzales has also brought her case (against the U.S.) to the Inter-American Commission on Human Rights.

The Claudia Gonzalez, Campo Algodonero Story: Claudia Gonzalez, Esmeralda Herrera Monreal, and Laura Ramos Monarrez are three among hundreds of women of Ciudad Juarez whose murders, rapes, and mutilations over the last 15 years have gone unsolved and scarcely investigated by Mexican authorities. The murders of all these women have occurred in a climate of police and prosecutor indifference to these cases.

In 2001, Claudia Gonzalez disappeared on her way to work. Authorities at first refused to investigate. A month later, police handed her family a bag of bones they claimed were the remains of Claudia. The disappearances of the other two women were also met with police disdain, inaction, and refusal to cooperate with the families. In both these cases, too, police one day handed the families a bag of bones purported to be those of Esmeralda and Laura. Forensic tests later proved they were not.

The Legal Case: The families of the three women petitioned the inter-American Commission on Human Rights for remedy for Mexico's failures to prevent, prosecute, and punish the gender-based violence against the women. The families based their claim on the obligations of states as laid out in a number of international and regional human rights treaties and conventions in which gender based violence, whether perpetrated by state or private actors, is understood as a violation of women's human rights for which states have the affirmative obligation to prevent, investigate, prosecute, punish, and compensate.

In November 2009, the international court (the Inter-American Court of Commission on Human Rights) found in favor of the women, confirming a state's affirmative obligations of 'due diligence' to victims of violence against women perpetrated by private actors, and finding that Mexico had violated those rights. The court also ordered Mexico to provide a broad set of specific remedies, both to compensate the individual families, and to mandate relevant change in the Mexican community. The sentence against Mexico included providing reparations of over $200,000 to each of the families, renewing investigations, standardizing protocols, creating a memorial, establishing a web site of relevant data, and much more.

The Impact on Women: Campo Algodonero is not the first case in which international courts have held states liable for failure to provide 'due diligence' to victims of gender based violence. But the Algodonero decision has given international clarity to essential concepts underpinning a state's obligations to victims of gender based violence. The decision is anchored firmly in the understanding that gender based violence, when perpetrated by state or private actors, is a human rights violation against women and a form of discrimination against women, for which the state has full 'due diligence' responsibilities in multiple named international treaties, and for which the state can be held fully accountable. There is no ambiguity in the decision rendered in this important case.

For more information on the Claudia Gonzalez, Campo Algodonero case, see;

Case #8: ~ L.R.'s Asylum Petition to U.S. Homeland Security, Year 2010 ~

Failure of a government to respond to domestic violence, or gender-based violence, can be grounds for the U.S. granting asylum.

L.R.'s Story: L.R., a Mexican national, while living in Mexico was beaten, raped, burned, and threatened for decades by her common law husband. She went to Mexican police 8 times, and each time the police returned her to her husband. When L.R went to the Mexican courts for remedy, a judge told her he would help her if she had sex with him. L.R. managed to escape to the United States in 2004. That same year she petitioned for asylum.

The Legal Case: Until very recently, U.S. immigration courts have been reticent to consider any one for asylum who was not directly a victim of political persecution perpetrated by state actors. L.R.'s is the second case, in rapid succession, in which a victim of domestic violence who was ignored by her country's authorities has been granted asylum in the U.S..

The Impact on Women: While not strictly an international human rights case, the U.S. here seems to be bending to the developments in human rights law as it pertains to women's rights. Most commentators on the L.R. case stress that the L.R. asylum decision, while it cannot be considered an open door to victims of violence against women, it is a leap foreward in establishing that gender based violence perpetrated by private actors is indeed a rights violation that will be considered, and that a government's failure to protect the victim is a basis for opening that door.

What, of course, is so ironic about the L.R. asylum decision is that the U.S. here recognizes the heightened danger to L.R. caused by the failure of Mexican law enforcement to respond properly to domestic violence, while, at the same time, U.S. civil courts have been doing their darndest to hold that the same failures of U.S. law enforcement do not result in heightened dangers. Go figure.

For more on the L.R. Asylum Case see:

Post Script: Don't forget to check up on the outcome of the Jessica Gonzales case now before the Inter-American Commission on Human Rights. Hopefully there will be a ruling by the time you are reading this.

For updates on the case Click Here.


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