Burella v. City of Philadelphia

AMBRO, Circuit Judge,

concurring in part.

State protection-from-abuse statutes seem to reside in a rock-solid castle of narrow construction barring any federal constitutional relief for the very victims that the statutes are designed to protect. I join my colleagues in their analysis of Jill Burella’s substantive due process, equal protection, and state-created danger claims. I join them as well in the result they reach concerning procedural due process. My comments that follow address that issue.

In Town of Castle Rock v. Gonzales, 545 U.S. 748, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005), the Supreme Court reiterated its “continuing reluctance to treat the Fourteenth Amendment as a font of tort law.” Id. at 768,125 S.Ct. 2796 (internal citations and quotation marks omitted). It held that Colorado’s legislature had created no constitutionally protected entitlement to protection for victims of abuse because it did not truly mandate that police officers arrest violators of court-issued restraining orders. Id. at 760, 125 S.Ct. 2796. “[A] true mandate of police action,” the Court opined, “would require some stronger indication from the Colorado Legislature than ‘shall use every reasonable means to enforce a restraining order’ (or even ‘shall arrest ... or ... seek a warrant’).” Id. at 761, 125 S.Ct. 2796 (quoting Colo.Rev.Stat. § 18-6-803.5(3)(a) & ft})).

Ms. Burella contends that Pennsylvania’s Protection from Abuse Act of 1994 provided sufficiently clear indication of mandatory police action. While Pennsylvania’s General Assembly has made a valiant effort to do so, I cannot submit that it has succeeded post-Casife Rock. Moreover, even if Pennsylvania’s Protection Act created a substantive entitlement to mandatory police action, the officers here have qualified immunity because any such entitlement was not clearly established at the time of the events in question. Thus, for any claim to afford constitutional relief in preventing domestic violence and protecting future victims of abuse, Pennsylvania’s legislators would need to go back to the drawing board.

“The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits.” Bd. of Regents of State Coll. v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). “To have a property interest in a benefit, a person clearly must ... have a legitimate claim of entitlement to it.” Id. at 577, 92 S.Ct. 2701. Such entitlements arise from “existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Id.; see also Bishop v. Wood, 426 U.S. 341, 345, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). To determine whether a certain interest rises to the level of a claim of entitlement that is constitutionally protected by the procedural due process requirements of the Fourteenth Amendment, we look to the nature rather than the weight of the interest at stake. Roth, 408 U.S. at 571, 92 S.Ct. 2701; see also Perry v. Sindermann, 408 U.S. 593, 602, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). This *151means “specific benefits,” Roth, 408 U.S. at 576, 92 S.Ct. 2701, that are designed to benefit a plaintiff directly. See Castle Rock, 545 U.S. at 766, 125 S.Ct. 2796.

Castle Rock addressed whether a Colorado statute setting police officers’ duties in crimes relating to violations of court-issued restraining orders created a constitutionally protected property interest or entitlement for victims of abuse in that state’s statutory scheme. Id. at 751, 125 S.Ct. 2796. In concluding that Colorado created no such interest or entitlement, the Supreme Court reasoned primarily from the statutory language, which was not sufficient to overcome “[a] well established tradition of police discretion ... with apparently mandatory arrest statutes.” Id. at 760, 125 S.Ct. 2796. Specifically, the Court held that the Colorado legislature failed to create a “truly ... mandatory”22 arrest statute because “shall” had been used elsewhere in Colorado arrest laws to mean “may,” and because the statute explicitly gave police officers the option of arresting or seeking an arrest warrant. Id. at 761, 125 S.Ct. 2796. The discretion granted police under the Colorado statute was particularly apparent in Castle Rock, where the suspected violator was not actually present. There was also nothing in the statute mandating that police pursue the violator to enforce the order; rather, they were to exercise their discretion in whether and how to pursue that violator or seek a warrant for doing so. Id. at 762, 125 S.Ct. 2796. “[A] true mandate of police action,” the Court opined, “would require some stronger indication from the Colorado Legislature than ‘shall use every reasonable means to enforce a restraining order’ (or even ‘shall arrest ... or ... seek a warrant’).” Id. (quoting Colo.Rev.Stat. § 18-6-803.5(3)(a) & (b)). In addition to the insufficiently strong language, the Colorado legislature had created no “true mandate” because the nature of the purported entitlement-arrest, seeking a warrant, or enforcement otherwise — was too indeterminate. Id. at 763, 125 S.Ct. 2796. Finally, the Colorado “mandate” was lacking because the benefit to the victim of enforcement was collateral rather than direct, inasmuch as the statute made no provisions for the victim herself to initiate criminal contempt proceedings against the violator, keeping that prerogative in the hands of the state.

Perhaps most importantly, the statute spoke directly to the protected person’s power to “initiate contempt proceedings against the restrained person if the order.. [was] issued in a civil action or request the prosecuting attorney to initiate contempt proceedings if the order [was] issued in a criminal action.” [Colo.Rev.Stat.] § 18-6-803.5(7). The protected person’s express power to “initiate” civil contempt proceedings contrasts tellingly with the mere ability to “request” initiation of criminal contempt proceedings — and even more dramatically with the complete silence about any power to “request” (much less demand) that an arrest be made.

Id. at 766, 125 S.Ct. 2796.

In essence, Castle Rock recognized that a state statute could create a mandatory *152arrest scheme when the statutory language strongly signals an intent to curtail police discretion to enforce a protection order (1) with clearly commanding language, (2) by excluding the indetermina-cies accompanying the option either to arrest or to seek a warrant, and (3) by creating a direct entitlement permitting the victim herself to pursue enforcement. The Pennsylvania Protection Act no doubt comes closer than Colorado in meeting these tests. Alas, it too fails.

The language of the Pennsylvania Protection Act differs markedly from Colorado’s discretionary language. Unlike Colorado’s law, Pennsylvania’s statute did not simply state that “[a] peace officer shall use every reasonable means to enforce a protection order” and “shall arrest, or, if an arrest would be impractical under the circumstances, seek a warrant,”.Colo.Rev. Stat. § 18-6-803.5(3) (emphases added). Rather, the Pennsylvania Protection Act, when enacted in 1976, required no warrant where there was probable cause to believe that a suspect had violated a protection-from-abuse (PFA) order. Following amendments in 1994, the statute now provides that officers “shall arrest a defendant for violating an order.” 23 Pa. Con. Stat. § 6113(a). This amended language restricts the window of discretion by omitting language granting officers the option to seek a warrant rather than to arrest. The 1994 amendments also permitted victims to pursue directly (although, as noted below, with limits) criminal prosecution of protection-order violators. 23 Pa. Const. Stat. § 6113.1 (providing for “private criminal complaints for violation of order”). In addition, violation of the PFA order itself became a crime — that of criminal contempt. 23 Pa. Con. Stat. § 6113(c). In effecting these three principal changes and some others, Pennsylvania provided deliberate and strong indication that it intended arrest to be mandatory under the statute.23 No longer did it give police the option to arrest; it now commanded it.

The issue is whether this intent to mandate arrest can get around the “deep-rooted nature of law-enforcement discretion, even in the presence of seemingly mandatory legislative commands,” Castle Rock, 545 U.S. at 761, 125 S.Ct. 2796, and particularly in light of the presumption that “all police officers must use some discretion in deciding when and where to enforce [statutes].” City of Chicago v. Morales, 527 U.S. 41, 62 n. 32, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (emphasis added). Castle Rock appealed to this presumption, “[t]he practical necessity for” which it deemed “particularly apparent [in that case] ... where the suspected violator [wa]s not actually present and his whereabouts [we]re unknown.” Castle Rock, 545 U.S. at 762, 125 S.Ct. 2796.

To be sure, state and federal criminal statutes typically specify crimes and penalties without dictating the way law enforcement will arrest and prosecute suspected criminals, leaving that to the executive’s discretion. But if courts recognize that it is ever possible for legislatures to mandate the police to arrest, as Castle Rock seemed to do, 545 U.S. at 761, 125 S.Ct. 2796, I do not see why police officers’ decisions in how to carry out their duty to arrest, or even their inability to arrest in certain situations should the perpetrator be ab*153sent, compromise the extent to which a statute mandates arrest (as the Pennsylvania Protection Act purports to do). After all, the absence of the perpetrator in Pennsylvania would not lessen the statutory requirement to arrest him for violation of a PFA order; it would simply mean the impossibility of carrying out the mandate at some particular time.

If the Protection Act is read to mandate arrest, a byproduct of that mandate is of course the specification of a definite entitlement: arrest for a violation. Castle Rock noted that even if Colorado’s statutory language required truly mandatory arrest, it did not create an entitlement because it did not grant the victim the right to bring a criminal action against the violator to enforce the order. 545 U.S. at 765-66, 125 S.Ct. 2796. It instead permitted the victim to initiate civil contempt proceedings directly or to request initiation of criminal contempt proceedings. Id. at 766, 125 S.Ct. 2796. This rendered any government’s enforcement action “indirect and incidental” to the victim. Id. at 767, 125 S.Ct. 2796 (quoting O’Bannon v. Town Ct. Nursing Ctr., 447 U.S. 773, 787, 100 S.Ct. 2467, 65 L.Ed.2d 506 (1980)).

The Pennsylvania General Assembly attempted to avoid this infirmity by granting the victim the right to initiate a criminal prosecution herself. While this gives hope to victims of abuse, my colleagues correctly point out that proceeding with any such suit is within the discretion of the local district attorney. Without commenting on the practical wisdom of stripping the district attorney of this discretion, it would need to be eliminated were the Protection Act amended further.

* * % * # *

Pennsylvania has enacted statutory provisions much stronger than those of Colorado to signal its intent to entitle' Ms. Burella and other victims of abuse to redress the lack of enforcement of PFA orders. This laudable effort, which predates Castle Rock, does not meet that case’s substantial roadblocks. Further revisions to the Protection Act are required, but in no event will they help Ms. Burella. Moreover, I reluctantly concede my colleagues are correct to suggest that a legislature would be hard-pressed to draft around Castle Rock in light of the “well-established tradition of police discretion [that] has long coexisted with apparently mandatory arrest statutes.” Maj. Op. at 144 (citing Castle Rock, 545 U.S. at 760, 125 S.Ct. 2796). Although the Supreme Court has not held explicitly that a state legislature can never mandate arrest or that abuse-protection statutes can never create a constitutionally protected interest, the perception persists that few (if any) paths to those results are available. There is nothing left but to observe that

[i]n light of [Castle Rock] and ... DeShaney [v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)], the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its “substantive” manifestations.

Castle Rock, 545 U.S. at 768, 125 S.Ct. 2796 (citations omitted) (emphasis added). The next version of the Protection Act to be written (if at all) by the Pennsylvania General Assembly requires resolving conflicts of policy — the protection of citizens and the discretion accorded police officers and district attorneys in carrying out that function. Moreover, even if the Act is amended to contain the strongest, most discretionless language, it may nonetheless *154succumb to challenge and prove to be a Potemkin village.24

. The Castle Rock majority notes that "in the specific context of domestic violence, mandatory-arrest statutes have been found in some States to be more mandatory than traditional mandatory-arrest statutes.” 545 U.S. at 761, 762, 125 S.Ct. 2796 (emphasis added). This language is awkward, as "mandatory” does not have gradations on a scale. An act is mandated, or it is not. In the same vein, Justice Stevens observed, "[t]he innovation of the domestic violence statutes was to make police enforcement ... not 'more mandatory,’ but simply mandatory.” Id. at 784, 125 S.Ct. 2796 (Stevens, J., dissenting) (emphasis in original).

. The statutory history shows a consistent pattern of increasing the scope of protection and enforceability of protection orders. For example, the 1994 amendments further created a right of action for civil contempt in § 6114.1 and recognized foreign protection orders in § 6118 (providing for “full faith and credit”). We note as well that amendments in 2001 incorporated the recognition of foreign protection orders into § 6113, thereby requiring arrest for "foreign protection order[s]” as well as Pennsylvania PFA orders.

. What then can be done? The answer may simply be to take this case out of a constitutional context and into one of state tort law. This, of course, would require a waiver of immunity under the Commonwealth's Political Subdivision Tort Claims Act. Currently under that Act, the Pennsylvania government asserts immunity from claims by individuals "on account of injury to a person or property caused by the act of [a] local agency or an employee thereof or any other person." 42 Pa. Con. Stal. Ann. § 8541. Eight exceptions to governmental immunity are spelled out in 42 Pa. Con. Stat. Ann. § 8542. These exceptions currently do not provide for governmental liability for police officers’ failure to protect victims of domestic abuse. See generally Simmons v. City of Phila., 947 F.2d 1042, 1084-88 (3d Cir.1991) (discussing immunity and liability under Pennsylvania's Political Subdivision Tort Claims Act).