Under State-Created Danger Doctrine, Officer May Violate Substantive Due Process By Disparaging Domestic Violence Victim to Abuser, or Praising Abuser While Protecting Him From Arrest; But Officers Entitled to Qualified Immunity

In Martinez v. City of Clovis, published December 4, 2019, the 9th Circuit affirmed summary judgment in favor of defendant police officers in a 42 U.S.C. section 1983 case.  The plaintiff was in a relationship with a police officer.  In response to a domestic abuse call, a defendant officer declined to arrest the suspected abuser, and did not inform the plaintiff of shelter options.  The officer, a co-worker of the suspected abuser, then disclosed to the suspect the contents of the plaintiff's complaint, and asked him what he was doing dating a girl like plaintiff.  After the officer left, the suspect abused the plaintiff again.  On a later domestic violence call, a group of officers believed they had probable cause to arrest the suspected abuser.  A senior officer ordered the other officers not to arrest the suspect, but instead refer the matter to the district attorney.  He remarked that the suspected abuser's family were "good people."  That night, the suspect abused the plaintiff again.  The officer was eventually convicted of violating a protective order. He pleaded guilty to a domestic violence charge.  The plaintiff contended that the officer defendants violated her substantive due process rights under the state-created danger doctrine, by affirmatively placing her at greater risk of abuse.

The court of appeals ruled that the officer defendants did not increase the risk of abuse to the plaintiff by not arresting the suspect, or by failing to advise the plaintiff of all of her options to escape abuse.  Those acts did not increase the danger of abuse that the plaintiff already faced.  But disclosing a confidential report of abuse to the suspected abuser while disparaging the complaining victim did increase the danger, by emboldening the abuser.  Similarly, ordering officers not to arrest the abuser, while praising the abuser, emboldened the abuser and increased the danger.  But the officers were entitled to qualified immunity, because the law did not clearly establish that those acts violated substantive due process.  Although a similar case from the 2nd Circuit found a violation of substantive due process, other circuits disagreed with that case.  Absent binding authority, a consensus of non-binding authority is necessary to clearly establish the law.  The court emphasized that its decision would henceforth clearly establish the law on the subject.