Friday, March 13, 2009

Liability for failure to prevent domestic abuse?

Here is a new case from the Illinois Supreme Court that combines a couple of topics we discuss in class. One of them, not central to the decision in this case, relates to the possible duty of a medical professional to disclose information obtained from a patient in order to prevent the patient from hurting someone else. The other, the key question in the case, relates to whether the state has a duty to provide police protection to someone the state knows has been the victim of domestic violence and who has a protective order against the person who hurt her in the past.

 In this case, a man physically and emotionally abused his girlfriend for a number of years. Eventually, she obtained several protective orders against him and he was arrested several times both for domestic battery and for violating the orders. At some point thereafter, the man's chiropractor contacted the Chicago Police Department to report that the man told the chiropractor he was looking to hire someone to kill the woman and later that he had found someone for the job. During the next two months - up to the date of her death- the woman called the Palatine and Glenview police departments many times requesting that they either arrest the man or provide supervision and protection for her. However, she received no police protection and the man murdered the woman.

The special administrator of the woman's estate, filed suit against the Village of Palatine, the Village of Glenview and individual police officers, alleging that they willfully and wantonly breached duties owed to the decedent under the Illinois Domestic Violence Act. Section 305 of the Domestic Violence Act provides that ''any act of omission or commission by any law enforcement officer acting in good faith … shall not impose civil liability … unless the act is the result of willful or wanton misconduct.''

The estate argued that the police's conduct was willful or wanton because they were aware of the order of protection, knew that the abuser/murderer was in violation of the order, had been informed of all facts necessary to take immediate action against him and had probable cause to arrest him based on the information they had received. The trial court granted the defendants' motion to dismiss.

The appeals court reversed but the Supreme Court reversed the appeals court and held the case had been properly dismissed. The Supreme Court said that a public entity or public employee enjoys absolute immunity for a failure to provide police protection, prevent the commission of a crime or to make an arrest.

Although under certain circumstances police intervention may be required, there is no generalized, open-ended duty to protect victims of domestic violence. There really is no duty "to serve and protect."

According to the Domestic Violence Act, in order for the limited duty provided for in section 305 to apply, the officer's act of omission or commission must occur while the officer is rendering ''emergency assistance or otherwise enforcing the act.'' In this case, there was no claim that the defendants were rendering ''emergency assistance'' and there was no evidence they did anything to otherwise "enforce the act" during the two months leading to the decedent's death. In other words, the defendants can't be liable for failing to do something about the threats precisely because they didn't do anything about it.

This case is in accord with the prevailing view on this subject. If the Court were to hold to the contrary, it would create a generalized duty by all law enforcement agencies and personnel toward anyone who has been abused by a family or household member. The opinion is called Lacey v. The Village of Palatine.

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