January 22, 1997
United States Court of Appeals
For the First Circuit
No. 96-1024
FLOR MARIA SOTO,
Plaintiff, Appellee,
v.
CARLOS FLORES, ET AL.,
Defendants, Appellants.
ERRATA SHEET
ERRATA SHEET
The opinion of this Court issued on January 13, 1997 is corrected
as follows:
On cover sheet, line 26: substitute "Laffitte" for "Lafitte".
On page 21, line 2: substitute "Kneipp v. Tedder, 95 F.3d 1199,
1201 (3d Cir. 1996)" for "Kneipp, 95 F.3d at 1201".
United States Court of Appeals
for the First Circuit
No. 96-1024
FLOR MARIA SOTO,
Plaintiff, Appellant,
v.
CARLOS FLORES, ET AL.
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Jose Enrique Colon Santana, with whom Gary Broida was on brief,
for appellant.
Vannessa Ramirez, Assistant Solicitor General, Department of
Justice, with whom Carlos Lugo-Fiol, Solicitor General, was on brief
for appellees.
January 13, 1997
LYNCH, Circuit Judge. On April 21, 1991, Angel
LYNCH, Circuit Judge.
Rodriguez shot to death his two young children and then
killed himself. This tragedy occurred four days after
Rodriguez's wife, Flor Maria Soto, complained to the police
about the physical and emotional abuse she suffered at
Rodriguez's hands. The police, knowing Rodriguez had
threatened to kill Soto and her family if Soto went to the
police to have him jailed for his spousal abuse, nonetheless
violated their obligations of confidentiality and informed
Rodriguez of Soto's complaints. Having done so, the police
did not jail Rodriguez or take steps to protect Soto and her
family. Soto's lawsuit alleges that Rodriguez did what he
had threatened to do and that the state created this danger.
Rather than pursue any claims available to her under Puerto
Rican law, Soto chose to bring suit in federal court alleging
constitutional tort theories.
Soto brought suit under 42 U.S.C. 1983, claiming
that the actions of the defendants, Carlos Flores, a police
officer, and Ismael Betancourt-Lebron, Puerto Rico's
superintendent of police, violated her and her children's
rights to substantive due process and to equal protection of
the laws. The district court granted summary judgment in
favor of the defendants. We do not reach the difficult
question of whether Soto, in her capacity as a representative
of her dead children, has presented a due process claim that
would survive summary judgment, because we find that the
defendant officers are protected by qualified immunity on
that claim. As to the equal protection claim, we adopt a
standard for measuring such claims in domestic violence
cases. Testing the evidence against that standard, we find
that Soto has not adduced sufficient evidence of
discriminatory intent to survive summary judgment.
Accordingly, we affirm the district court.
I. Facts
We recite the facts in the light most favorable to
the plaintiff, the party opposing summary judgment. Flor
Maria Soto married Angel Rodriguez, nicknamed Rafi, in 1981.
Rodriguez and Soto had two children: Sally was born in 1983,
and Chayanne, a boy, in 1988. Approximately a year into
their marriage, Rodriguez began to abuse Soto emotionally and
physically. This abuse, often connected to Rodriguez's
drinking, continued throughout their marriage. The abuse was
apparent to family and friends. As one neighbor put it,
"anyone who visited them could tell that [Soto] was an abused
wife." Despite his constant mistreatment of Soto, Rodriguez
never abused the children.
Rodriguez did gardening and vehicle repair work for
the police officers at Palmer Police Station, a sub-station
of the Rio Grande precinct. Rodriguez was friends with
several of the officers from Palmer Station, including Luis
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Carrasquillo-Morales ("Carrasquillo")1 and defendant Carlos
Flores-Moreira ("Flores"). Rodriguez visited the station
almost daily. Many of the officers, when on patrol in the
area, would visit the Rodriguez-Soto home for coffee or a
drink. Flores and Rodriguez were particularly friendly;
about once a week, during his patrol rounds, Flores would
stop by the house for an hour's visit.
On Wednesday, April 17, 1991, Rodriguez struck Soto
about her face and neck, bruising her, and called her
insulting names. When Rodriguez fell drunkenly asleep, Soto
gathered the children and went to her mother's house. Soto's
mother, Hipolita Vega, convinced her to go to the police and
file a complaint. In nine years of beatings, some of them
worse than the one on April 17, Soto had never sought help
because she believed that the police would do nothing,
because she had nowhere to go, and because she was afraid of
Rodriguez. Rodriguez had threatened her with a gun on
several occasions and told her that he would kill her and
other members of her family if she went to the police.
Knowing that Rodriguez was friendly with the police, Soto
feared that the police would do nothing except tell Rodriguez
that she had complained.
1. Carrasquillo was originally named as a defendant in this
action, but defaulted in the district court proceedings. In
order to have a final judgment from which she could appeal,
Soto sought and was granted a voluntary dismissal of her
claim against Carrasquillo.
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On that night, despite her fear, Soto went with her
mother and her children to the Palmer Police Station. When
she arrived, she was met by Flores, who was the desk officer
on duty. Flores could see that Soto was crying and marked
with bruises, "pretty ugly hematomas." Soto explained that
Rodriguez had beaten her. Flores then radioed for the patrol
officers to come in and take her complaint, referring to Soto
on the radio as "Rafi's wife" and saying that it was a Law 54
case. During the fifteen to twenty minutes that Soto and
Flores waited for the patrol officers to arrive, Flores told
Soto that he himself had domestic violence problems, and that
his wife wanted him to be put in jail. He urged Soto to
patch things up with Rodriguez. Soto responded by telling
Flores that Rodriguez's beatings were too much to stand and
that, as Flores knew, Rodriguez was a heavy drinker, who
became violent when drunk. Soto told Flores about everything
that Rodriguez had done and what he would do to her. Flores
offered Soto the opportunity to stay overnight at the
station.
Sergeant Orta,2 the supervisor, arrived, and Flores
told him that Soto was "the lady with the Law 54 complaint."
When the patrol officers, Carrasquillo and Jose Serrano,
arrived, Flores said, "This is Rafi's wife," and told them
2. The district court denied a belated motion to add
Sergeant Orta as a defendant. No appeal is taken from the
denial of that motion.
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that she was there on a Law 54 complaint. Carrasquillo took
Soto into an interview room, three steps away from the desk
at which Flores sat. Soto was nervous and crying. The door
to the interview room remained open, and Flores listened to
everything that was said in Soto's conversation with
Carrasquillo.
In the interview room, Soto told Carrasquillo about
Rodriguez's behavior, and showed him her bruises.
Carrasquillo asked Soto whether she wanted Rodriguez jailed.
Soto replied by explaining her situation to the officers.
Specifically, she told Carrasquillo that Rodriguez had told
her that if she put him in jail, he would get out quickly
because his family had money and that he would then kill her.
She told Carrasquillo that Rodriguez had told her that if she
attempted to put him in jail, he would kill her mother and
sisters so that she would go to the wake and he would then
kill her there.
Having told the police officers about Rodriguez's
threats, Soto asked them to do what was appropriate.
Although Soto did not use the words "domestic violence
complaint," she believed that by describing her situation to
the officers she was initiating the complaint process.
Carrasquillo wrote down everything she said during the
interview, and Soto assumed that he was drafting a complaint
against Rodriguez.
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Soto's effort to get police assistance came a year
and a half after a new law aimed at curbing domestic violence
had gone into effect. In November 1989, the Puerto Rican
legislature enacted one of the nation's most comprehensive
domestic violence laws, the Domestic Abuse Prevention and
Intervention Act, known popularly as "Law 54." In addition
to defining criminal domestic violence broadly, Law 54 makes
arrest of an abuser mandatory whenever an officer has grounds
to believe that Law 54 has been violated. P.R. Laws Ann.
tit. 8, 631-635, 638 (Supp. 1995). Police officers are
required to take all steps necessary to prevent abuse from
recurring, including providing the complainant with
information about social services and, if she expresses
concern for her safety, with transportation to a safe place.
Id. 640. Law 54 also requires that police officers file a
written report on all domestic violence incidents, whether or
not any charges are ever filed. Id. 641. The police
superintendent is charged with establishing "norms to
guarantee confidentiality with regard to the identity of the
persons involved in incidents of domestic violence." Id.
Implementing regulations issued by the superintendent of
police detail the officer's responsibilities, and instruct
that arrest determinations are not to be affected by
irrelevant factors, including victim reluctance. Rules and
Procedures to Attend to Domestic Violence Incidents, Puerto
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Rico Police General Order No. 86-26m (Rev. 1). The
regulations explicitly state that police attempts at
mediation or reconciliation shall not substitute for arrest.
Id. at 4. The regulations require that domestic violence
reports be kept confidential, in separate files, and that
copies only be issued upon a court order. Id. at 19. These
regulations explicitly recognize that:
Domestic violence . . . frequently ends
in intra-family homicide and it affects
all the components of the family,
including the children.
Id. at 1.
Despite this legal framework, at the conclusion of
his interview with Soto, Carrasquillo took no action.
Carrasquillo did not tell Soto about the availability of
battered women's shelters or about procedures for obtaining
an order of protection. Nor did he prepare a domestic
violence report. Instead, Carrasquillo wrote up an "Other
Services Report," which falsely indicated that Soto had
visited the police solely for advice relating to child
custody.3 Soto returned to Vega's house.
3. Soto contends that she signed a domestic violence report
at the station that night and that the Other Services Report
produced by the defense is an after-the-fact forgery, and
part of a cover-up, which included pressure on Flores to
commit perjury. Her claim of forgery is supported by the
testimony of a handwriting expert, and Flores's testimony
suggests that pressure was put on him.
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Carrasquillo discussed Soto's complaint with his
supervisor, Sergeant Orta, that evening. When Sergeant Orta
signed the Other Services Report he did so despite
information that this was a Law 54 situation and that the men
under his supervision were not doing what the law required.
Sergeant Orta discussed the "Other Services" report with
Flores.4 Flores told him that Rodriguez and Soto had
marital problems because Rodriguez was an alcoholic. Flores
said he would talk to Rodriguez the next day.
Sometime the next day, April 18, Officer Flores,
despite knowing of Rodriguez's threats to commit murder if
Soto went to the police in an effort to jail him, went to the
Rodriguez-Soto home and told Rodriguez about Soto's visit to
the police station. That night, Rodriguez arrived at Vega's
home, very upset. He told Vega and Glorivee Soto, Soto's
sister, that "the boys" from the police station had told him
that Soto wanted to put him in jail and that he would not
allow that to happen. Vega managed to calm him and he left.
The next day, Friday, April 19, Rodriguez ran into
the plaintiff at a local tire shop. Rodriguez, visibly
4. A police department internal investigation followed the
killings. On August 31, 1992, the examiner concluded that
Carrasquillo and Sergeant Orta, the supervisor who signed the
Other Services Report prepared by Carrasquillo, merited
reprimands for failing to act pursuant to the norms
established by Law 54. Neither Betancourt-Lebron nor Flores
was a subject of that investigation, although Flores was
interviewed regarding his knowledge of the events.
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upset, told plaintiff that Officer Flores had been to their
home and had told him that Soto was going to throw him in
jail. Soto, fearing violence, denied it. She tried to calm
Rodriguez down, but Rodriguez kept repeating that Flores had
told him she wanted him jailed.
On Saturday, the twentieth of April, Rodriguez
again came to Vega's home and invited Soto to the beach.
Soto refused to go, but the children, excited at the rare
prospect of an outing with their father, got into the car.
Rodriguez did not bring the children back that day as he had
promised. Soto went twice to try to pick them up, but both
times Rodriguez refused to give the children to her.
Finally, at 8:00 p.m. on April 21, Soto, mindful
that the next day was a school day, went back to the family
home determined to get the children. As she stood on the
lawn, Soto heard both children tell Rodriguez that she had
arrived. Sally shouted, "Run, Mommy, please run!" Rodriguez
then shot his son in the forehead. Soto heard Sally say to
her father, "Daddy, no, Daddy, no." Rodriguez then shot
Sally through her mouth. Soto heard a third shot. Rodriguez
had killed himself. When the police, including
Carrasquillo and Serrano, arrived, Rodriguez was dead. The
children were still alive and the police rushed them to the
hospital. Both children were dead on arrival.
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On the wall of the room where Rodriguez shot his
children, Rodriguez had written a message which confirmed
that Flores had told him of Soto's visit to the police. The
message said, among other things, "you left me, and Officer
Flores knows it," and "Law 54, which is only a tool for women
to make men do whatever they want, is not liberty."
II. Procedural History
Soto's initial section 1983 complaint alleged that
the acts and omissions of Officer Flores deprived her of her
rights to due process and to equal protection of the laws.
Additionally, she alleged that Superintendent Betancourt-
Lebron was liable for his failure to properly train and
supervise his subordinate officers.
After discovery, Flores and Betancourt-Lebron moved
to dismiss, and, in the alternative, for summary judgment.
In addition to arguing that Soto's claims lacked merit, the
defendants asserted that they were entitled to the
protections of qualified immunity. In an opinion dated
January 20, 1995, the district court granted the motion for
summary judgment. As to the due process claim, the court
held that, because an individual may not bring a section 1983
action for deprivation of due process based on injury to a
family member, the death of Soto's children did not give rise
to a cognizable claim. Soto v. Carrasquillo, 878 F. Supp.
324, 327 (D.P.R. 1996)(citing Valdivieso-Ortiz v. Burgos, 807
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F.2d 6, 7-10 (1st Cir. 1986)). As to the equal protection
claim, the court held that Soto had failed to adduce enough
evidence on discriminatory intent and causation to defeat
summary judgment. Soto, 878 F. Supp. at 331-32.
Soto requested reconsideration; as part of her
motion, she asked for leave to amend her complaint to bring
the action as a representative of her children. The district
court treated the complaint as amended, but dismissed the
claim on behalf of the children, holding it barred by
DeShaney v. Winnebago County, 489 U.S. 189 (1989). The court
accordingly denied Soto's motion for reconsideration. Soto
appeals.
III. The Section 1983 Claims
Soto presses two distinct claims. First, she
alleges that the defendants' actions violated her and her
children's rights to due process. Second, Soto asserts that
the defendants had a custom or policy of providing less
protection to victims of domestic violence than to victims of
other assaults, that this was the result of gender
discrimination, that this caused her injuries, and that
defendants thus violated her right to equal protection. We
consider each of these claims in turn.
A claim under section 1983 has two essential
elements. First, the challenged conduct must be attributable
to a person acting under color of state law (including Puerto
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Rico law); second, the conduct must have worked a denial of
rights secured by the Constitution or by federal law.
Martinez v. Colon, 54 F.3d 980, 984 (1st Cir.), cert. denied,
116 S. Ct. 515 (1995). The second element requires the
plaintiff to prove not only a deprivation of federal right,
but also that the defendant's conduct was a cause in fact of
the alleged deprivation. See Maldonado-Santiago v.
Velazquez-Garcia, 821 F.2d 822, 831 (1st Cir. 1987)("Section
1983 imposes a causation requirement similar to that of
ordinary tort law.").
A. The Due Process Claim
Soto claims that the deaths of her children are
attributable to the defendants' actions, and that those
actions deprived both her and her children of what she terms
a "substantive due process life interest."5 We examine
separately Soto's individual claim and her claim on behalf of
her children.
1. Soto's Individual Claim.
5. Some victims of abuse have brought section 1983 claims
alleging that official nonfeasance deprived them of
procedural due process. See, e.g., Meador v. Cabinet for
Human Resources, 902 F.2d 474, 476-77 (6th Cir.), cert.
denied, 448 U.S. 867 (1990); Coffman v. Wilson Police Dep't,
739 F. Supp. 257, 263-66 (E.D. Pa. 1990). In these cases,
the plaintiffs argued that state law made certain protective
processes mandatory, and thus created entitlements subject to
due process protection against deprivation. See, e.g,
Coffman, 739 F. Supp at 263-64. However, from our reading of
the record, Soto does not appear to make a procedural due
process claim. Thus, we do not address whether the
protective provisions of Law 54 create such an entitlement.
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The district court held that Soto, in her
individual capacity, could not bring a due process claim
based on injury to her children. Soto, 878 F. Supp. at 327.
On appeal, Soto argues both that the district court erred in
so holding and that the injury she complains of is not
limited to the loss of the companionship of her children, but
also comprehends the mental anguish she has suffered
personally.
We review the district court's grant of summary
judgment de novo. Dominique v. Weld, 73 F.3d 1156, 1158 (1st
Cir. 1996). We examine, viewing the record in the light most
favorable to the nonmoving party, whether the district court
correctly applied the substantive law and whether any
disputed facts have the potential to change the outcome of
the suit. See Martinez v. Colon, 54 F.3d 980, 983-84 (1st
Cir. 1995).
There is no absolute constitutional right to enjoy
the companionship of one's family members free from all
encroachments by the state. See Valdivieso-Ortiz v. Burgos,
807 F.2d 6, 8 (1st Cir. 1986). "State action that affects
the parental relationship only incidentally . . . even though
the deprivation may be permanent . . . is not sufficient to
establish a violation of a identified liberty interest."
Pittsley v. Warish, 927 F.2d 3, 8 (1st Cir.), cert. denied,
502 U.S. 879 (1991). Thus, the death of a family member will
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not ordinarily give those still alive a cognizable due
process claim under section 1983. See Manarite v.
Springfield, 957 F.2d 953, 960 (1st Cir.)(child could not sue
police for failure to prevent father's suicide), cert.
denied, 506 U.S. 837 (1992); Valdivieso-Ortiz, 807 F.2d at 10
(stepfather and siblings had no cause of action where prison
guards beat inmate to death). Here, the defendants' actions,
despite the tragic outcome, were not specifically aimed at
ending or affecting Soto's relationship with her children.
Nor can Soto successfully distinguish her case from the cited
precedents of this court by pointing to her own mental
anguish. The question is not one of a degree of suffering,
but whether the plaintiff can establish a violation of
federal right. While Soto's loss was of enormous,
heartbreaking magnitude, the Constitution does not protect
against all harms. She herself was not deprived of a
constitutionally protected interest, and she may not bring a
section 1983 due process claim on her own behalf.
2. Soto's Claim as a Representative of Her
Children.
In deciding Soto's motion for reconsideration, the
district court granted Soto's request to amend her complaint
so as to bring a claim as a representative of her children.
The court then found that the children's claim was foreclosed
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by DeShaney, dismissed the claim and denied the motion for
reconsideration of the due process claim.
Review of denial of a motion for reconsideration is
for abuse of discretion. See Airline Pilots Ass'n v.
Precision Valley Aviation, Inc., 26 F.3d 220, 227 (1st Cir.
1994). For purposes of this appeal, we consider Soto's
complaint, as amended, to determine if the district court
committed legal error in holding that Soto, as a
representative of her children, failed to state a claim upon
which relief could be granted. See Cooter & Gell v.
Hartmarx, 496 U.S. 384, 405 (1990) (district court abuses
discretion when it makes error of law); cf. Glassman v.
Computervision Corp., 90 F.3d 617 (1st Cir. 1996)(in
reviewing denial of leave to amend complaint, court considers
whether complaint as amended would state cognizable claim).
Defendants argue, and the district court held, that
any claim on behalf of Soto's children is barred by DeShaney,
which held that "a State's failure to protect an individual
against private violence simply does not constitute a
violation of the Due Process Clause." 489 U.S. at 197. We
agree that if Soto's argument were simply that Flores and his
brother officers failed to protect her children from
Rodriguez, it would clearly fail. See, e.g, Pinder v.
Johnson, 54 F.3d 1169 (4th Cir.) (en banc) (rejecting due
process claim based upon police failure to protect domestic
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violence victim), cert. denied, 116 S. Ct. 530 (1995);
Balistreri v. Pacifica Police Dep't, 901 F.2d 696 (9th Cir.
1990)(same).
However, Soto alleges more than a mere failure to
protect. She claims, and her claim has support in the
record, that Officer Flores visited Rodriguez at home and
told him that Soto had been to the police station and wished
to jail him. She further alleges that when he did so Flores
was fully aware of how Rodriguez would likely react to this
information, not only because Flores knew Rodriguez's
character well, but also because Flores knew that Rodriguez
had threatened to murder her and her family members if she
went to the police and attempted to stop his abuse by having
him jailed. Soto alleges that Flores misused information
that he had obtained in an official capacity, and that this
affirmative act rendered her children more vulnerable to the
danger posed by Rodriguez and thus led to their deaths.
Soto alleges that Flores's conduct violated a duty
of constitutional dimension owed to Soto's children.
DeShaney clearly establishes that the state does not have a
constitutional duty to protect its citizens from private
violence. DeShaney, 489 U.S. at 197. However, in DeShaney,
the Supreme Court also recognized a distinction between the
case before it and other cases in which the state created the
risk faced by the plaintiff:
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While the State may have been aware of
the dangers that [the plaintiff] faced in
the free world, it played no part in
their creation, nor did it do anything to
render him any more vulnerable to them.
[By returning the plaintiff child to his
abusive father, the State] placed him in
no worse position than that in which he
would have been had it not acted at all.
Id. at 201. The situation here arises from the state actor's
affirmative acts, which played a part in creating the danger
to the children and rendered them more vulnerable to harm.
Soto thus contends that it falls outside the scope of
DeShaney, in that it "implicates the alternate framework of
1983 liability wherein a plaintiff alleges that some
conduct by an officer directly caused harm to the
plaintiff."6 Pinder, 54 F.3d at 1176 n.* (emphasis in
original); see also Dwares v. City of New York, 985 F.2d 94,
99 (2d Cir. 1993)("[T]hough an allegation simply that police
officers had failed to act upon reports of past violence
would not implicate the victim's rights under the Due Process
Clause, an allegation that the officers in some way had
6. The distinction between duty-to-protect cases and danger-
creation cases was colorfully described by the Seventh
Circuit in Bowers v. De Vito, 686 F.2d 616 (7th Cir. 1982).
While holding that "there is no constitutional right to be
protected by the state against being murdered by criminals or
madmen," Judge Posner pointed out that "[i]f the state puts a
man in a position of danger from private persons and then
fails to protect him, . . . it is as much an active
tortfeasor as if it had thrown him into a snake pit." Id. at
618.
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assisted in creating or increasing the danger to the victim
would indeed implicate those rights.").
Not every negligent, or even willfully reckless,
state action that renders a person more vulnerable to danger
"take[s] on the added character of [a] violation[] of the
federal Constitution." Monahan v. Dorchester Counseling
Ctr., Inc., 961 F.2d 987, 993 (1st Cir. 1992). In a creation
of risk situation, where the ultimate harm is caused by a
third party, courts must be careful to distinguish between
conventional torts and constitutional violations, as well as
between state inaction and action. See id.; Pinder, 54 F.3d
at 1175-78.
The scope of any permissible section 1983 action
based on a state-created danger theory is a difficult
question. See, e.g., Pinder, 54 F.3d at 1175; Monahan, 961
F.2d at 993-94. Because we find that this claim may be
resolved on immunity grounds, we choose not to reach this
question.
3. Qualified Immunity.
Assuming arguendo that Soto had stated a claim that
Flores and Betancourt-Lebron violated her children's
constitutional rights, the issue becomes whether the
defendants are entitled, as they argue, to qualified immunity
from suit. There are two prongs to qualified immunity
analysis. See St. Hilaire v. Laconia, 71 F.3d 20, 24 (1st
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Cir. 1995). First, the court must determine, as a matter of
law, whether the constitutional right in question was clearly
established at the time of the alleged violation. Id. If
the right is clearly established, the court must then ask
whether a reasonable similarly situated officer "should have
understood that the challenged conduct violated" that right.
Id.
To begin, Soto's arguments against qualified
immunity appear to misconstrue the doctrine. Soto argues,
with evidentiary support, that not only did the defendants
violate Law 54 and the pertinent regulations, but also that
they knew or reasonably should have known that they were
violating it. According to Soto, "[n]o good faith defense is
possible if the official knew he was violating plaintiff's
rights."
The Supreme Court has considered, and rejected,
this approach to qualified immunity. Davis v. Scherer, 468
U.S. 183, 193-95 (1984). In Davis, the plaintiff argued that
official conduct that contravened a statute or regulation
could not be objectively reasonable because officials may
reasonably be expected to conform their conduct to legal
norms. Id. at 193. The Court rejected this approach because
it would "disrupt the balance . . . between the interests in
vindication of citizens' constitutional rights and in public
officials' effective performance of their duties." Id. at
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195. "Officials sued for constitutional violations do not
lose their qualified immunity merely because their conduct
violates some statutory or administrative provision." Id. at
194; see also Borucki v. Ryan, 827 F.2d 836, 847 n.18 (1st
Cir. 1987). Accordingly, Soto's arguments with regard to Law
54, even if her alleged facts are true, do not resolve the
qualified immunity question. The focus is rather on whether
there is clearly settled law on the constitutional violation
at issue. This inquiry is sharpened by two narrowing
principles. The right must be stated with sufficient
particularity so that a "'reasonable officer would understand
that what he is doing violates that right'" and the right
must have been "clearly established at the time of the
defendants' alleged improper actions, and . . . not . . .
through the use of hindsight." Souza v. Pina, 53 F.3d 423,
425 (1st Cir. 1995) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)). The issue is thus whether the
constitutional duty not to affirmatively abuse governmental
power so as to create danger to individuals and render them
more vulnerable to harm was clearly established in April
1991, the time of the events giving rise to this suit.
What the Third Circuit termed the "'state-created
danger theory,'" Kneipp v. Tedder, 95 F.3d 1199, 1201 (3d
Cir. 1996), has been recognized by some federal courts as a
viable mechanism for establishing a constitutional claim at
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least since 1979. See White v. Rochford, 592 F.2d 381, 383
(7th Cir. 1979) (finding Due Process Clause violation where
"unjustified and arbitrary refusal of police officers to lend
aid to children endangered by the performance of official
duty . . . ultimately result[ed] in physical and emotional
injury to the children"); see also Cornelius v. Town of
Highland Lake, 880 F.2d 348 (11th Cir. 1989), cert. denied,
494 U.S. 1066 (1990); Wood v. Ostrander, 879 F.2d 583 (9th
Cir. 1989), cert. denied, 498 U.S. 938 (1990); Checki v.
Webb, 785 F.2d 534, 538 (5th Cir. 1986). In DeShaney, the
Supreme Court acknowledged that state actions that create
dangers or render private citizens more vulnerable to harm
could amount to constitutional violations. See DeShaney, 489
U.S. at 201. Since DeShaney, seven circuit courts of appeals
have recognized that state-created dangers may, in proper
circumstances, give rise to constitutional claims under
section 1983. See Kneipp, 95 F.3d at 1208 (citing cases and
tracing history of state-created danger theory).
While this history would appear to militate in
favor of finding that there is clearly established law in
this area, in 1991 the First Circuit had not yet addressed
the issue of state-created dangers. The first case from this
court to discuss the contours of that doctrine was Monahan
v. Dorchester Counseling Ctr., Inc., 961 F.2d 987 (1st Cir.
1992), and that case held that, on the facts alleged, there
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22
was no constitutional violation. Of course, a violation of
clearly settled law may be found even where the Supreme Court
and the circuit in question have not specifically addressed
the question. See 2 Nahmod, Civil Rights and Civil Liberties
Litigation: The Law of Section 1983, 8.07, at 134-35 (3d
ed. 1991) (citing cases).
However, we cannot extract a clearly established
right from a somewhat confusing body of caselaw through the
use of hindsight, or "permit claims of qualified immunity to
turn on the eventual outcome of a hitherto problematic
constitutional analysis." Martinez-Rodriguez v. Colon-
Pizarro, 54 F.3d 980, 989 (1st Cir. 1995). The history of
the state-created danger theory, although recently
comprehensively described by the Third Circuit in Kneipp, is
an uneven one. The distinction between affirmatively
rendering citizens more vulnerable to harm and simply failing
to protect them has been blurred. Moreover, courts have
sometimes found that a given action, while rendering the
plaintiff more vulnerable to danger, did not amount to a
constitutional violation, but instead should be viewed as a
state law tort. See, e.g., Cannon v. Taylor, 782 F.2d 947,
950 (11th Cir. 1986). It is more recent judicial opinions
that have begun to clarify the contours of this doctrine.
See, e.g., Kneipp, 95 F.3d at 1208-10; Pinder, 54 F.3d at
1174-1177.
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23
We conclude therefore that, in 1991, "the contours
of the right were [not] sufficiently plain that a reasonably
prudent state actor would have realized not merely that his
conduct might be wrong, but that it violated a particular
constitutional right." Martinez-Rodriguez, 53 F.3d at 988.
Accordingly, we find that the defendants are entitled to the
protections of qualified immunity, and affirm the district
court's grant of summary judgment on plaintiff's substantive
due process claim.
B. The Equal Protection Claim
In DeShaney, the Supreme Court acknowledged that
"[t]he State may not, of course, selectively deny its
protective services to certain disfavored minorities without
violating the Equal Protection Clause." 489 U.S. at 197 n.3.
Soto alleges an equal protection violation in her
assertion that "[d]efendants have a custom, policy and
practice of treating complaints from, or on behalf of, women
threatened with violence in domestic disputes differently
from other complaints of violence. Defendants have
discriminated on the basis of the sex of the complaining
victim." The district court measured Soto's equal protection
claim7 under the standard for such claims brought by domestic
7. The district court correctly found that Valdivieso-
Ortiz's bar on section 1983 actions for due process
violations based on the death of a family member has not been
extended to equal protection claims. Soto, 878 F. Supp. at
328 n.6.
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24
violence victims that was first articulated by the Tenth
Circuit in Watson v. City of Kansas City, 857 F.2d 690 (10th
Cir. 1988), and subsequently adopted by several other
circuits. Under the Watson standard, a plaintiff seeking to
defeat a motion for summary judgment must:
proffer sufficient evidence that would allow a
reasonable jury to infer that it is the policy or
custom of the police to provide less protection to
victims of domestic violence than to other victims
of violence, that discrimination against women was
a motivating factor, and that the plaintiff was
injured by the policy or custom.
Ricketts v. City of Columbia, 36 F.3d 775, 779 (8th Cir.
1994) (citing Watson, 857 F.2d at 694), cert. denied, 115 S.
Ct. 1839 (1995).
The district court found that Soto had adduced
sufficient evidence to create a genuine issue as to whether
the police force had a custom or policy of providing less
protection to victims of domestic violence than to other
assault victims. Soto, 878 F. Supp. at 329. We agree. The
court also found that plaintiff had failed to meet her burden
in opposing summary judgment8 on either the discriminatory
intent prong or the causation prong of the Watson standard.
Id. at 332.
8. It was part of Soto's prima facie case to proffer
sufficient evidence of discriminatory intent. See, e.g.,
Lipsett, 864 F.2d at 896. In opposing summary judgment, it
was Soto's burden to adduce sufficient evidence of that
intent to create a trialworthy issue. See National
Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 743-44 (1st
Cir.), cert. denied, 115 S. Ct. 2247 (1995).
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25
In a matter of first impression for this court, we
adopt the Watson standard for section 1983 equal protection
claims brought by domestic violence victims. Several other
circuits have considered similar claims. These tragedies
follow a sadly similar pattern; an abuse victim, after
repeatedly seeking police protection from her abuser, is
gravely injured or killed. The victim, or her next of kin,
claims under section 1983 that law enforcement policies
provide lesser protection to victims of domestic violence and
discriminate on the basis of gender. See, e.g, Navarro v.
Block, 72 F.3d 712 (9th Cir. 1996); Eagleston v. Guido, 41
F.3d 865 (2d Cir. 1994), cert. denied, 116 S. Ct. 53 (1995);
Ricketts, 36 F.3d at 775; Brown v. Grabowski, 922 F.2d 1097
(3d Cir. 1990), cert. denied, 501 U.S. 1218 (1991); McKee v.
City of Rockwall, 877 F.2d 409 (5th Cir. 1989), cert. denied,
493 U.S. 1023 (1990); Watson, 857 F.2d at 690.
Under the standard we adopt today, Soto must show
that there is a policy or custom of providing less protection
to victims of domestic violence than to victims of other
crimes, that gender discrimination is a motivating factor,
and that Soto was injured by the practice. See Watson, 857
F.2d at 694. Soto has adduced evidence sufficient to create
an issue as to whether there was a custom or policy of
providing less protection to domestic violence victims.
Closer questions are whether Soto adduces evidence sufficient
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26
to permit the drawing of the necessary inference of an intent
to discriminate against women and whether Soto provides
sufficient evidence that her injuries were caused by the
alleged custom or policy.
Soto's argument may be summarized as follows: (1)
that the Preamble to Law 54 explicitly recognizes that "women
are usually the victims of . . . conjugal abuse" and that Law
54 expresses a legislative intent to protect women and
children from domestic violence;9 (2) that, although 95% of
domestic violence complaints involve females as victims and
males as perpetrators, one out of every four persons in jail
in Puerto Rico for domestic violence is female;10 (3) that
statements of the individual in charge of the police in
Puerto Rico, Betancourt-Lebron, demonstrate both that Law 54
is not enforced as are other laws and that his disagreement
with the law, which may reasonably be understood to be gender
motivated, has led to non-enforcement by subordinate
9. Law 54 has been noted in academic literature for "its
ambitious and comprehensive approach to domestic violence."
See Rivera, Puerto Rico's Domestic Violence Prevention and
Intervention Law and the United States Violence Against Women
Act of 1994: The Limitations of Legislative Responses, 5
Colum. J. Gender & L. 78, 80 (1995). Rivera also describes
how official resistance to Law 54 has been an impediment to
implementation. Id. at 94-95.
10. While Soto admits that she presented no evidence of
arrest rates for men charged with domestic violence as
compared to arrest rates for women charged with domestic
violence, she asserts that such comparisons are impossible
because Puerto Rico has chosen not to gather this data.
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27
officers; (4) that there was no police training on domestic
violence prior to the events at issue; (5) that statements by
Sergeant Orta, and Officers Flores and Carrasquillo
acknowledge that police officers in the Rio Grande precinct
in 1991 did not enforce Law 54; (6) that statements by
individual officers demonstrate gender bias and stereotyping,
indicating that the Law was not enforced for discriminatory
reasons; (7) that the non-discriminatory reasons offered for
the non-enforcement are pretextual; (8) that differential
enforcement of Law 54 therefore permits an inference of an
intent to discriminate; and (9) that her injuries were caused
by the non-enforcement of the domestic violence law.
Defendants argue that no intent to discriminate can
be inferred from mere non-enforcement of a law. It is a
truism that under current Equal Protection Clause
jurisprudence, a showing of disproportionate impact alone is
not enough to establish a constitutional violation.11 See
Washington v. Davis, 426 U.S. 229, 242 (1976). While
"impact provides an important starting point" for a court
seeking to determine if the adverse effect reflects invidious
gender-based discrimination, "purposeful discrimination is
11. "The Court's refusal to treat selective indifference as
an equal protection violation suggests a preference for a
stingy process theory over one that invites surreptitious
introduction of impact analysis." Klarman, An Interpretive
History of Modern Equal Protection, 90 Mich. L. Rev. 213, 299
(1991).
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'the condition that offends the Constitution.'" Personnel
Administrator v. Feeney, 442 U.S. 256, 274 (1979) (citation
omitted) (upholding a veteran's preference in civil service
hiring where 98% of veterans were male). "[T]he mere
existence of disparate treatment -- even widely disparate
treatment -- does not furnish adequate basis for an inference
that the discrimination was [impermissibly] motivated."
Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19
(1989); see Siegel, "The Rule of Love": Wife Beating as
Prerogative and Privacy, 105 Yale L.J. 2117, 2190-94
(1996)(modern doctrines of equal protection have encouraged
the development of facially neutral policies that are
difficult to challenge on constitutional grounds).
A domestic violence victim seeking to prove an
equal protection violation must thus show that the relevant
policymakers and actors were motivated, at least in part, by
a discriminatory purpose. Feeney, 442 U.S. at 274. The
Supreme Court has defined discriminatory purpose as being:
more than intent as volition or intent as
awareness of consequences. . . . It
implies that the decisionmaker . . .
selected or reaffirmed a course of action
at least in part "because of," not merely
"in spite of" its adverse effects upon an
identifiable group.
Id. at 279.
Without the smoking gun of an overtly
discriminatory statement by a decisionmaker, it may be very
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29
difficult to offer sufficient proof of such a purpose.12
See, e.g., Eagleston, 41 F.3d at 878 (statistics showing that
domestic violence complaints were less likely to result in
arrest than were stranger assault complaints and evidence of
underenforcement of official domestic violence policy did not
constitute evidence of discriminatory intent or purpose);
Ricketts, 36 F.3d at 781 (although over 90% of victims of
domestic abuse are women, and police statements offered
support for discriminatory intent toward domestic disputes,
plaintiff presented no evidence of intent to discriminate
against women). It is true, as Soto points out, that some
courts have allowed the equal protection claims of domestic
violence victims to proceed on an arguably lesser showing.
See Balistreri, 901 F.2d at 701 (remark of officer that
plaintiff's husband was entitled to hit her because she was
"carrying on" suggested an animus against women sufficient to
allow plaintiff's complaint to survive motion to dismiss);
Thurman v. City of Torrington, 595 F. Supp. 1521, 1528-29
(D. Conn. 1984)(viewing equal protection claim of domestic
violence victim in terms of "increasingly outdated
misconception" of husband's prerogative to discipline his
12. As the Third Circuit has recognized in the Title VII
context, it is rare that discrimination wears its garb openly
and it more often comes "masked in subtle forms." Triers of
fact may recognize those more subtle forms for what they are
and coded comments may raise inferences of discrimination.
Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d
Cir. 1996).
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30
wife) (internal quotation marks and citation omitted)).
However, we think that the stringent standards imposed by the
majority of circuit courts are more in keeping with the
Supreme Court's approach to equal protection challenges to
facially neutral policies. It is in this light that we
evaluate Soto's equal protection claim.
This is not the usual case in which plaintiffs seek
to prove discriminatory intent from the mere fact of
differential impact. Nor is this the more common case where
a plaintiff in a civil rights action seeks to use the courts
to upset the majoritarian preferences expressed through the
legislative process. Rather, plaintiff here seeks the
benefit of the protection afforded by that majoritarian
legislative process and argues that she has been deprived of
that protection by the actions of individual public officials
motivated by a contrary, gender-discriminatory intent.
The statutory language of Law 54, and the
legislative intent evident from its preamble, serve to
differentiate this case from the typical disparate impact
case. The Law's prefatory "Statement of Motives" states that:
Although men as well as women may be
victims of conjugal abuse, studies show
that women are usually the victims of the
aggressive and violent conduct that we
call conjugal abuse. . . . The
investigators figure that 60% of all
married women in Puerto Rico are victims
of conjugal abuse.
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31
Statement of Motives, Domestic Abuse Prevention and
Intervention Act, Act No. 54 (Aug. 15, 1989)(citation
omitted). This recognition that the problem of domestic
violence impacts women most heavily is reiterated in the text
of Law 54 itself:
In developing the public policy on this
matter, we must give attention to the
handling of the difficulties that
domestic abuse presents, especially for
women and children.
P.R. Laws ann. tit. 8, 601 (Supp. 1995) (emphasis added).
Law 54 also explicitly recognizes that discrimination has
impeded institutional responses to domestic violence:
Domestic abuse is one of the most
critical manifestations of the effect of
inequities in the relationships between
men and women. The discriminatory ideas,
attitudes, and conduct also permeate
those social institutions called upon to
resolve and prevent the problem of
domestic abuse and its consequences.
The efforts of these institutions to
identify, understand and handle abuse
have been limited, and often inadequate.
Id. (emphasis added).
In the more usual equal protection case, a
plaintiff will present evidence of disparate impact upon a
disfavored group in an attempt to provide an "important
starting point" for proof of discriminatory intent. See,
e.g., Feeney, 442 U.S. at 274. Here, the Statement of
Motives of Law 54 contains an explicit legislative finding
that domestic violence has a greater impact on women and the
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Law expresses an intent to ameliorate that impact. This
legislative finding is evidence that underenforcement of Law
54 would indeed have a greater impact on women and might
therefore be motivated by gender discrimination.
Moreover, the express legislative desire to assist
women victims of domestic violence and recognition of the
problem of discrimination within responsible institutions are
important factors to be considered in the "give and take" of
the situation. See Feeney, 442 U.S. at 279 n.24
(discriminatory intent is often "made clear from what has
been called . . . 'the give and take of the situation'")
(citation omitted). The Supreme Court has said that the
discriminatory intent inquiry should look not only at the
different impact a policy has on a disfavored group, but also
at the history behind the development of a policy, including
looking at the problems it was intended to address. See
Arlington Heights, 429 U.S. at 266-68.
To the extent that decisions such as Feeney and
Arlington Heights are rooted in an appropriate judicial
deference to democratic processes and rational legislative
preferences, the rationale of deference is less compelling
here. See, e.g., Feeney, 442 U.S. at 271 ("The calculus of
effects, the manner in which a particular law reverberates in
a society, is a legislative and not a judicial
responsibility. . . .[I]t is presumed that 'even improvident
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33
decisions will eventually be rectified by the democratic
process. . . .'" (citations omitted)); Arlington Heights, 429
U.S. at 265 ("[I]t is because legislators and administrators
are properly concerned with balancing numerous competing
considerations that courts refrain from reviewing the merits
of their decisions, absent a showing of arbitrariness or
irrationality."). With Law 54, the legislature of Puerto
Rico has expressed, through the democratic process, an intent
to protect the female victims of domestic violence and has
noted that enforcement agencies have been discriminatory and
part of the problem. Thus, underenforcement of Law 54 by
those charged with administering the law may in fact be a
subversion of majoritarian processes for individual,
illegitimate motives. We believe, in this context, that
action by officials leading to non-enforcement of Law 54 may
be some evidence of discriminatory intent by those
individuals. The policy Soto challenges is, of course, not
Law 54, but the decision not to implement the Law when she
sought its protections. In determining what, if anything,
motivated that decision, the factfinder may consider the
purposes of the Law itself, and draw appropriate inferences
about what might motivate a decision not to effectuate those
purposes. As the Law expressly seeks to aid women victims
and eradicate institutional discriminatory attitudes, a
decision not to implement the Law may well have been
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motivated not "in spite of," but "because of" the resulting
impact on women. We review the record to see whether there
issufficient evidence of intentas to eachof named defendants.
1. The Rio Grande Precinct
In reviewing whether the failure to enforce Law 54
was motivated by discriminatory intent, we look first to the
actions of the officers in the Rio Grande precinct. The key
actor at the precinct level was Sergeant Orta. Orta was told
Soto was making a Law 54 complaint, yet he signed an Other
Services Report in violation of Law 54 and took no steps to
have Rodriguez arrested. Nor did he take any steps to remove
Soto and her children from harm's way. He knew that Flores
was going to talk to Rodriguez and did not try to stop him.
He thus ratified and condoned the officers' disregard of Law
54.
Orta's statements, as described below, suggest a
discriminatory attitude towards women; this attitude may have
been one of the reasons behind the lack of enforcement of Law
54 at the Palmer substation of the Rio Grande precinct.
Sergeant Orta made statements which a trier of fact could
easily find reveal gender-discriminatory stereotypes and
biases. He testified as follows:
Q: What is your opinion of Act 54?
A: I told you the first time, and I remit
myself to the record, that I am in total
disagreement with that Act. I believe
that it is very unjust related to
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aggressions against women and I do not
agree with that.
Q: Why do you believe it is very unjust
with relation to aggressions against
women?
A: Sometimes men, including myself of
course, but sometimes one drinks on the
outside or has a woman on the side or a
friend on the side, and one has an
argument with one's lady friend and goes
home and takes it out on the wife. And I
believe that is not just.
. . .
Q: Then I ask you, again, what is your
opinion with relation to the law?
A: Well, the thing is that the law, in
spite of it mentioning both parties as
being able to complain, the woman is
always the person who is injured.
Credibility is given to the woman, where
there are occasions when that doesn't
happen that way.
The weight to be given to Sergeant Orta's comments
depends upon many factors. See National Amusements, 43 F.3d
at 743 (ambiguous comments standing alone are insufficient to
raise an inference of racial animus). The defendants here
have not offered a plausible alternative interpretation for
comments which in context suggest discrimination. See
Alexis v. McDonald's Restaurants, Inc., 67 F.3d 341, 348 (1st
Cir. 1995) ("[A] rational factfinder would be hard-pressed to
glean a more plausible inference [than discriminatory
intent], particularly since [defendant] has tendered no
alternative interpretation supported by the present
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36
record."). The comments were made by a person whose actions
allegedly contributed to the plaintiff's injury.
Sergeant Orta's statements are very troubling. His
hostility to enforcing the domestic violence law could
certainly be understood as arising from archaic stereotypes
which assume that men enjoy certain prerogatives towards
women, including beating them.13 Gender-based
"classifications may not be used, as they once were, to
create or perpetuate the legal, social, and economic
inferiority of women." United States v. Virginia, 116 S. Ct.
at 2275 (citation omitted). Although Sergeant Orta is not a
defendant here, he was a supervisor and his attitudes are
13. "The Anglo-American common law originally provided that
a husband, as master of his household, could subject his wife
to corporal punishment or 'chastisement' so long as he did
not inflict permanent injury upon her." Siegel, "The Rule of
Love": Wife Beating as Prerogative and Privacy, 105 Yale L.J.
at 2118. This "right" of chastisement was recognized by
Blackstone's Commentaries in the eighteenth century. 1
William Blackstone, Commentaries *444. A wife could turn to
a court for protection through a writ of supplicavit. Id.
The doctrine of chastisement was met with some disfavor and
was not universally accepted in American legal culture. See
Tapping Reeve, The Law of Baron and Femme; of Guardian and
Child; of Master and Servant; and of the Power of Courts of
Chancery 65 (New Haven, Oliver Steele 1816); Siegel, supra,
at 2124.
By the late nineteenth century, around the time of
the enactment of the Equal Protection Clause, the doctrine of
the right of chastisement had fallen into disrepute in
America. The Supreme Judicial Court of Massachusetts
expressly repudiated the doctrine in 1871. Commonwealth v.
McAfee, 108 Mass. 458 (1871). Alabama repudiated the
doctrine that same year. Fulgham v. State, 46 Ala. 143
(1871).
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37
evidence of whether the failure to enforce Law 54 at the
precinct level was based on discrimination.
Law 54 was enforced sporadically, at best, in the
precinct in 1991. Officer Flores testified that almost
everyone in his police detachment "shied away from" Law 54
complaints. Asked what happened to the victims when the
officers did not want to take complaints, Flores responded,
"Well, they had to continue complaining." Flores testified
that proper Law 54 procedures were followed only about 75% of
the time, and then just by certain officers. Sergeant Orta,
Flores's direct supervisor, stated that, despite Law 54,
domestic violence complaints were not given great importance
in 1991 and were commonly handled in the station as "Other
Services" reports. There would certainly be enough facts to
raise a reasonable inference that the failure to enforce Law
54 at the precinct level was based on gender discrimination.
That, however, does not answer the question as to
whether Officer Flores, who is the defendant here, acted out
of gender-based discriminatory intent in talking to
Rodriguez. It was not within Flores's responsibilities to
take Soto's complaint or to arrest Rodriguez. We find no
evidence to suggest that Flores's motivation in talking to
Rodriguez was based on gender discrimination. There is no
evidence that Flores himself attempted to avoid enforcement
of Law 54 at all, much less for discriminatory reasons.
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38
Flores, despite the lack of official training, undertook to
get some training for himself. When Soto came to the Palmer
substation, Flores called in the two patrol officers, whose
responsibility it was to take the complaint and act on it.
Flores described Soto's complaint as a Law 54 complaint to
the patrol officers, as he did to Sergeant Orta. There is no
evidence that Flores intervened and talked to Rodriguez
because of a gender-discriminatory motive; rather, the
relationship between the two men provides a strong inference
that Flores believed his friendship could provide a basis to
resolve the matter. Sadly, he was wrong. That he was wrong
does not turn his action into one motivated by gender
discrimination.
2. Police Superintendent Betancourt-Lebron
Plaintiff asserts that Betancourt-Lebron, the
superintendant of police for the Commonwealth of Puerto Rico,
should be held responsible because he failed to provide
adequate training, and because that failure was due to
gender- discriminatory bias.14 This claim is based largely
14. We will assume arguendo, but do not decide, that there
was evidence of a causal link between lack of training and
the events at the precinct. The street level officers --
Flores and Carrasquillo -- both testified that they had not
received formal training on Law 54, and were not even given a
copy of the law. Both officers were left with understandings
of the law that were flatly wrong. Both erroneously believed
that the victim had to specifically request a Law 54 order,
and that the victim had to sign a closed report if she did
not wish to proceed to get a restraining order. Sergeant
Orta also testified that he did not receive comprehensive
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39
on Betancourt-Lebron's public statements. For example, when
Law 54 had been in effect for eight months, Betancourt-
Lebron, was quoted in the press as saying:
I don't believe that [Law 54] is solving
anything because it has not lessened the
fights between husbands and wives. On
the contrary, there is evidence that it
continues to increase.
He went on to say that domestic violence should not be
treated with laws that punish the aggressors, but with
psychologists and social workers. This statement of
disagreement with the law's decision to criminalize such
conduct is not, in itself, a statement of discriminatory
intent. Plaintiff posits that the statement in context
should be read as discriminatory.
Soto's expert witness, Mercedes Rodriguez, opined
that, because one of the most dramatic changes achieved by
Law 54 was the criminalization of domestic violence, this
statement by Betancourt-Lebron was "one of the most severe
blows, that a public official of [his] stature" could give to
the law. Rodriguez called these statements "a deviation on
the part of the institutional leadership." It was the
position of the Women's Affairs Commission that Betancourt's
public statements "would promote rank and file's negative
attitudes toward women victims and their rights under Law
training in Law 54 until 1993, two years after the incident
at issue here.
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40
54." The Superintendent's public statements, in opposition
to a law he was charged with enforcing, were widely
disseminated. It is reasonable to infer, as Soto's expert
and the Women's Affairs Commission suggest, that they
influenced many of the rank and file in the police. But that
the statements had influence does not mean that they were
motivated by discrimination.
Additionally, Betancourt-Lebron acknowledged that
he foresaw that police officers would have problems
implementing Law 54 because its procedures differed from
other laws, and because "of active resistance from some
members of the Force toward the law." There is no evidence,
however, that he was aware of discriminatory attitudes at the
Rio Grande precinct, much less that, in the face of such
knowledge, he failed to act to curb those attitudes. Nor is
there any comparative evidence as to what, if any, training
Betancourt-Lebron implemented when other new laws went into
effect. Evidence that Law 54, which was specifically
intended to assist abused women, was handled differently than
other new major law enforcement initiatives could, perhaps,
support an inference of discriminatory intent. But the
record is devoid of such evidence.
Somewhat more probative of Betancourt-Lebron's
intent is his relationship with the Women's Affairs
Commission. Betancourt-Lebron declined to meet, for a year
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41
after approval of Law 54, with the Women's Affairs
Commission. Law 54 directs the Commission to evaluate
implementation of the law and to promote the response of law
enforcement agencies to victims. See P.R. Laws ann. tit. 8,
651 (Supp. 1995). The initial report of the Commission,
covering the first year of implementation, noted:
"Coordination with the Police of Puerto Rico to train
personnel as to domestic violence problems and Law 54 has
been virtually impossible." In fact, Betancourt-Lebron
returned none of the numerous phone calls or letters to him
from the Executive Director of the Commission, who was
concerned about the Police Department's apparent lack of
interest in implementing the law.
In the end, this evidence, while painting an
unwholesome picture, is not enough to meet the strict
standards imposed by the Supreme Court for showing
discriminatory intent in equal protection claims. As Feeney
says, the intent to be shown must be more than an "awareness
of consequences." Feeney, 442 U.S. at 279. The defendant
must have "selected . . . a course of action at least in part
'because of' not merely 'in spite of' its adverse effects on
an identifiable group." Id. An expression of disagreement
with Law 54 and a failure to meet with the Women's Affairs
Commission, while some evidence of discriminatory intent on
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42
the part of Betancourt-Lebron, is too slender a stalk on
which to rest.
Thus, we conclude that plaintiff has fallen short
of her difficult burden of proving discriminatory intent
against these defendants as required to establish a
constitutional tort. In so saying, we do not of course
condone the actions and failures of duties we have described.
The deaths of children, which may have followed from risks
arguably created by the actions of public officials, are very
serious matters. Whether this deplorable scenario is
actionable under Puerto Rican law we leave, as we must, to
others.
Accordingly, the grant of summary judgment against
plaintiff is affirmed.
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TORRUELLA, Chief Judge (concurring). I concur with
TORRUELLA, Chief Judge (concurring).
the majority's opinion. I am of the view that the District
Court should be affirmed for substantially the same reasons
and grounds as are stated in the opinion of the District
Court.
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44