The special relationship doctrine in domestic protective order cases.

• Author: Monaco, Helen L.
• Position: New York

WHEN one walks down a dark and deserted street, fear acts as a motivator for vigilance. The sight of a police officer contributes to a feeling of safety. If anything happens, immediate help is available. But assume that the officer stands by idly while an attack occurs. Have the police contributed to the victim's injuries by falsely encouraging the relaxation of attentiveness?

The officer's culpability also may increase if an element of personality is introduced. For example, the expectation of assistance would be heightened if the victim called out for help but was ignored, if there was a great disparity of size or aggressiveness between the assailant and the victim, or if there had been other attacks on the same street by the same aggressor. Indeed, if the officer were not visible on the street, the pedestrian may have chosen an alternate route home. Would anyone on the same street feel safe again?

The dark and deserted street many women traverse is domestic violence. The dangerous, undeterred attacker is a partner or spouse. And while it may be accepted that the police cannot be everywhere at once, many women try to summon their "street corner officer" via civil orders of protection, also called restraining or protective orders.

These orders are available in 48 states and the District of Columbia,(1) and they are a cooperative product of the three governmental branches: legislatively mandated, judicially issued, police enforced. Opinions regarding their effectiveness vary. Some commentators suggest they are worthless pieces of papers without consistent enforcement(2) or coordination among the various governmental entities involved.(3) Others consider these characterizations insults to judicial authority.(4)

Regardless of the difference of opinion, these orders are the most common method of protection used by battered women against their aggressors.(5) Just as frequently, protective orders fail to deter violent behavior and are violated with neither delay nor regret.(6)

The New York case of Tina Marie Berliner parallels the street corner metaphor.(7) She had forgone criminal prosecution in favor of an order of protection against her abusive husband. Two sheriff's deputies were outside her home when her husband breached the order's terms. She called out to them for help, as did her mother-in-law, but nevertheless, on October 16, 1985, she became one of the 4,000 women murdered annually as a result of domestic violence.(8)

Does an order of protection entitle the holder to any modicum of actual protection beyond the enforcement of the order, which amounts to a civil contempt charge in New York state? Does a special duty to intervene automatically attach to protective orders, resulting in municipal liability for police nonfeasance?

The ultimate question is not whether an order of protection in itself should have saved Tina Berliner, nor whether it should have required the police to do so, but instead whether those issues are subject to a review of reasonableness rather than a perfunctory assertion of municipal immunity.

This article discusses the historical foundation and present status of New York's special relationship doctrine, sometimes called the special duty doctrine, in the context of the failure of law enforcement people to provide adequate protection against criminal assault. It also addresses protective orders as a bridge between the civil and criminal functions of government and proposes models for change.

While the focus is on New York state, the discussion has much broader applicability.

SPECIAL RELATIONSHIP DOCTRINE

Municipalities in New York state owe police protection to the community as a whole but not to any one individual, absent a special duty.(9) A modern concept of sovereign immunity--the special relationship doctrine--has shielded municipalities from almost all tort liability resulting from police nonfeasance since its adoption by the New York Court of Appeals in 1958 in Schuster v. City of New York.(10) But New York's intermediate appellate courts now are beginning a minority trend that finds genuine issues of fact that bar summary judgments in police nonfeasance litigation. This trend may lead to fundamental changes in the area of municipal liability and the official response to domestic violence.

The special relationship doctrine originated in the historic tradition of monarchial protection. By the 13th century this doctrine was firmly established in English law and throughout Europe.(11) The divine right of kings bestowed on the monarch a plethora of deific privileges and shielded a variety of governmental atrocities.(12) In 1788 England extended the immunity of the central government to municipalities(13) and viewed the government as an inseparable collective entity, with its local appendages enjoying the same entitlement as the sovereign.

Surprisingly enough for a fledgling democracy eager to shed the vestiges of monarchism, the United States embraced sovereign immunity early in its history. After U.S. Supreme Court in 1793 held that states could be sued by citizens of other states,(14) the 11th Amendment to the Consitution was quickly adopted. It barred the federal courts from entertaining actions against one of the United States by a citizen of another state or of a foreign nation. When its reach was expanded to in 1821 to include suits against a state by its own citizens,(15) the amendment effectively barred all lawsuits against the government.

The initial motivation for the American adoption of sovereign immunity was primarily economic. Still heavily burdened with debt from the revolution, the federal government was apprehensive of taxing its already fragile coffers with potential legal liability.(16) The Supreme Court expanded this economic rationale in 1868 by advancing a concern for the flexibility of governmental discretion and declared "but for the protection [immunity] affords, the government would be unable to perform the varied duties for which it was created."(17)

New York statutorily waived its sovereign immunity in 1920.(18) The waiver was not absolute, however, as the legislation reserved broad immunity with regard to discretionary government functions for itself and its subdivisions. The 1958 decision in Schuster then created the special relationship as a narrow judicial exception to the reserved immunity.

Max Schuster, described as a "public spirited young man," aided the police in apprehending a dangerous fugitive. He later received death threats from the criminal's cohorts. Although Schuster promptly notified the police of these threats, they took no action to protect him. Three weeks later he was murdered.

The New York Court of Appeals held that the municipality was under a duty to exercise reasonable care to protect Schuster and other persons who, as a result of cooperation with law enforcement authorities, are subject to threats or violence. The court also emphasized that the "duty of everyone to aid in the enforcement of the law ... begets an answering duty on the part of the government, under the circumstances of contemporary life, reasonably to protect those who have come to its assistance in this manner." The failure to exercise this reasonable care would result in municipal liability, the court concluded.

The modern judicial motivations for the special relationship requirement were delineated in 1968 in Riss v. City of New York.(19) The Riss court held that the police were not liable for the plaintiff's injuries after the denial of her repeated requests for police protection from a rejected suitor turned stalker. The court's analysis for its failure to impose liability was three-pronged: the refusal to secondguess legislative or executive resource allocation; the need to avoid ruinous liability via the limitation of the class size owed a special duty; and a desire to expand the scope of governmental discretion.

First, the court held that the separation of powers precludes undue judicial influence in executive or legislative decision making. Absent new legislation, the court would not create a "new area of tort liability for inadequate police protection." Second, the specter of "limitless liability" encouraged the court to deny relief. This historically based economic rationale also was coupled with the fear of imposing a rigid rule structure on situations that require individualized judgments based on the sum of the circumstances.

The court expressed concern that the fear of civil liability would so paralyze a police force with anxiety for the legal ramifications of its actions that the efficient and effective performance of the police function would be jeopardized. Without a limitation of the class size owed a special duty, the court feared all municipal funds would be forced into the defense of claims and the satisfaction of judgments.

In 1987 in Cuffy v. City of New York,(20) the court enumerated four elements required for establishing a special relationship. These are:

(1) an assumption by the municipality through

promises or actions of an affirmative duty to act

on behalf of the party who was injured; (2)

knowledge on the part of the municipality's

agents that inaction could lead to harm; (3) some

form of direct contact between the munici-

pality's agents and the injured party; and (4) that

party's justifiable reliance on the municipality's

affirmative undertaking.(21)

If these elements are present, the presumption of immunity evaporates, and the governmental acts are subjected to the standard test for negligence--that is, reasonableness.(22)

In the more than 25 years since Riss, the New York Court of Appeals has applied the special duty elements strictly. No special relationship was found where the police investigated a domestic dispute but declined to...