dissenting:
I conclude that plaintiff fails to allege facts sufficient to establish a “special relationship” between the police and herself, and therefore I respectfully dissent.
I agree with the majority that state officials have a constitutional duty to protect a particular member of the public when a “special relationship” between the authorities and that citizen is created. I also agree that among the factors courts have considered in determining whether such a relationship arises are: (1) whether the plaintiff is in custody; (2) whether the state was aware of a specific risk of harm to the plaintiff; (3) whether the state affirmatively placed the plaintiff in a position of danger; or (4) whether the state affirmatively committed itself to the protection of the plaintiff. See Ketchum v. County of Alameda, 811 F.2d 1243, 1247 (9th Cir.1987); Escamilla v. Santa Ana, 796 F.2d 266 (9th Cir.1986); Jensen v. Conrad, 747 F.2d 185, 194 (4th Cir.1984). However, I disagree that the facts pleaded in Balistr-eri’s complaint give rise to a constitutional duty of police protection or that she was denied due process of law.
The majority opinion indicates that the existence of the restraining order enjoining Mrs. Balistreri’s husband from harassing or having contact with her, when considered in conjunction with police awareness of the dangers to the plaintiff, is sufficient to trigger the duty to protect. The majority, I think, overemphasizes the significance of the restraining order in this case. To be sure, the restraining order heightens the state’s awareness to Mrs. Balistreri’s risk of harm. However, as the majority concedes, police awareness of Mrs. Balistreri’s plight, by itself, does not create a “special relationship.”
I agree that the existence of the restraining order proves more than that the police were on notice of Mrs. Balistreri’s danger. For instance, it constitutes the basis for future enforcement proceedings. Proof of a violation of the order may give rise to a constitutional right to police protection and create an affirmative commitment that the state will enforce the order. However, contrary to the majority’s view, the mere existence of the order creates no such duty.
No case has held that the existence of a restraining order establishes the requisite “special relationship.” The district court in Dudosh v. City of Allentown, 665 F.Supp. 381, 390 (E.D.Pa.1987), a case the majority highlights, found that no special relationship of a constitutional dimension existed, even after specifically considering that a similar type of restraining order existed and that the police were aware of the victim’s plight. The only other case directly on point—Turner v. City of North Charleston, 675 F.Supp. 314, 318-19 (D.S.C.1987) — similarly found that no special relationship existed.
Not only does the majority opinion cite little precedent in support of its theory, but it also fails to give the police helpful guidance in implementing its responsibilities. For example, how are the police to determine when a citizen’s complaints are of such quantity and quality that a special relationship triggering the constitutional duty to protect is created? When does an ordinary, possibly frivolous, citizen complaint magnify to constitutional dimension? *1429If a citizen lodges a number of complaints, do those complaints trigger a constitutional duty on the part of the police, even though no restraining order has issued? How many complaints are necessary to create such a constitutional duty? How are the police to ascertain what level of response to the complaint is appropriate? At what point are the police required to file a written report, make a follow-up investigation, interrogate witnesses, make an on-site evaluation of the complaint, or arrest the alleged perpetrator? How are the police to balance the need to respond to a citizen’s complaints with other demands placed on its services? How are the police to decide whether those other demands, which themselves trigger police obligations and potential liability, should be subordinated to its obligations to respond to the citizen’s complaint? Are the complaints of a citizen protected by a restraining order given preferred status in terms of police response as against those of a citizen in equal need of police assistance, but who has not secured a restraining order/Does a wife-beating complaint to a local governmental agency, such as a municipal domestic relations commission, but not to the police, give rise to a duty of the police to protect under the due process clause? Does the citizen have a preexisting obligation to attempt to enforce the restraining order before the police’s constitutional duty arises?
I acknowledge that certain hypothetical situations may give rise to a duty of protection by the police. For instance, where the police observe a fight brewing between two combatants, and they are aware of particular danger to the participants or to bystanders, then the police might arguably have a constitutional duty of protection to those likely to be injured. Similarly, the police have the constitutional obligation to protect an individual who it perceives to be the target of imminent attack by a lynch mob. Where hostilities are imminent, and the police are percipient to the conflict, the police can be said to be directly involved and may have a duty to stop the attack.
The Ninth Circuit, however, has previously ruled to the contrary. In Escamilla v. City of Santa Ana, 796 F.2d 266 (9th Cir.1986) (Schroeder, J.), the Circuit held that undercover officers had no constitutional duty to protect an innocent bystander, even though they personally observed a barroom brawl stirring, that one of the combatants, whom they knew had a criminal record, was carrying a gun, and they heard the other combatant tell his friend to get a gun. If, as Escamilla seems to hold, the police had no duty to intervene to protect third parties in a case where they were practically in the middle of the fight, then they have no duty to safeguard a victim such as Mrs. Balistreri on the facts of this case.