The State-Created Danger in Domestic Violence Cases: Do We Have a Solution in Okin V. Village of Cornwall-on-Hudson Police Department?

Article excerpt

Roy Sears began physically abusing Michele Okin after the birth of their first child. (1) Okin sought police protection from Sears on multiple occasions. On one occasion when a police officer intervened and arrived at their home after Sears had beaten Okin, the officer did not question or arrest Sears, choosing instead to discuss football with Sears. At that time, Sears was beating Okin every day. The domestic violence continued after the officer left their home. Can Okin or other women in her situation bring a claim against police officers who act in similar ways for the violation of their substantive due process rights, and if so, under what standard?

Violence between intimate partners, perpetrated primarily against women, is a major societal ill. (2) It is the "single greatest cause of injury to women in America--more than muggings, rapes, and car accidents combined." (3) A woman in the United States is more likely to be killed by her partner than by any other assailant." (4) Domestic violence has long been considered a private matter rather than a public one, and many police officers still treat domestic violence as an issue that should be addressed in the privacy of the home. (5) The police sometimes fail to take steps to protect women from domestic violence, and in some cases, police action can increase victims' risk from domestic violence.

The United States Supreme Court in DeShaney v. Winnebago County Department of Social Services (6) held that the purpose of the Fourteenth Amendment is "to protect the people from the state, not to ensure that the state protect[s] them from each other." (7) DeShaney had a devastating effect on claims that could be brought under the Due Process Clause of the Fourteenth Amendment. Indeed, DeShaney created an obstacle for legitimate due process claims brought in federal court. Thereafter, courts began carving out exceptions to the rule. The "state-created danger doctrine" is one of the exceptions to this general rule.

This Article addresses the availability of redress for domestic violence victims under the state-created danger doctrine. Under the doctrine, a domestic violence victim may assert a claim by showing that a state agent, such as a police officer, acting under color of law, increased her danger by condoning a perpetrator's violent actions.

The Supreme Court has yet to adopt the state-created danger doctrine. At present, there is a split among circuit courts as to what constitutes state-created danger. Earlier cases, like Wood v. Ostranger, (8) interpreted DeShaney as distinguishing between cases where the state's actions do not increase the danger to a victim, therefore not triggering the exception, and cases where the state's actions put a victim in a more dangerous position. At present, individual circuits have established their own tests that a victim must meet in order to make a viable state-created danger claim. This Article focuses on the tests adopted by the Second, Third, Sixth and Tenth Circuits.

The Third, Sixth and Tenth Circuits have developed tests that include four or five factors that domestic violence victims bringing due process claims must prove, including, inter alia, whether the harm suffered by the victim was foreseeable and fairly direct, whether defendant's conduct put the victim at substantial risk of serious, immediate and proximate harm, and whether the police officer took affirmative action to increase the danger to the victim.

Because of their very specific factors, these tests are onerous and difficult to satisfy. It is therefore not surprising that victims of domestic violence who allege state-created danger almost always fail to prove one of the prongs of the requisite tests, thereby losing the opportunity to prove their cases in court.

This Article argues that courts applying the state-created danger doctrine to domestic violence cases brought under 42 U.S.C. [section] 1983 (9) should look to the flexible approach used by the court in Okin v. …