The state-created danger in domestic violence cases: do we have a solution in Okin v. Village of Cornwall-on-Hudson Police Department?

• Author: Awoyomi, Atinuke O.

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. Village of Cornwall-on-Hudson Police Department, (10) a recent case decided by the United States Court of Appeals for the Second Circuit. This approach would enable courts analyzing victims' claims under the state-created danger doctrine to adjust their determinations to the particular parties before them while considering the realities of domestic violence and inadequate police response. (11) Under the tests adopted by other circuits, there is less room for judicial discretion.

As discussed in Part III, Okin provides a series of optional factors rather than hard-line tests for proving a viable claim under the state-created danger doctrine. These factors include whether a police officer implicitly communicated to a perpetrator that the perpetrator would not be apprehended for his actions, thereby increasing the victim's vulnerability, or whether the officer's repeated sustained inaction in the face of violence condoned the perpetrator's acts. A victim need not prove all of the factors. She need only establish one of the factors and the state of mind requirement, namely, that the police officer's action "shocked the conscience." Under this latter requirement, to establish a violation of substantive due process rights, a victim must show that "the state action was so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." (12) Purposeful or intentional actions are most likely to be conscience shocking, while negligently inflicted harm is beneath the threshold of constitutional due process. (13) Recklessly inflicted harms are evaluated on a case-by-case basis, focusing on the context. (14)

The Okin court provided a less stringent threshold for conscience shocking actions. Unlike some courts that require willful conduct by the police, the Okin court required only deliberate indifference. The court established that deliberate indifference shocks the conscience in domestic violence cases. In other words, the state of mind requirement in domestic violence cases is deliberate indifference.

Therefore, based on a comparison with other circuit tests, the Okin test is more conducive to promoting justice for women who have suffered domestic violence at the hands of intimate partners. (15) The application of the adaptable factors in Okin may also provide police with an incentive to protect women from domestic violence.

Part I discusses the problems of domestic violence and inadequate police response. It describes the origin of the state-created danger doctrine and explains its parameters. Part II looks at the state-created danger doctrine in domestic violence cases only, emphasizing the division among the circuits on the issue. It also provides an in-depth survey of the facts and analysis used by the court in Okin v. Village of Cornwall-on-Hudson Police Department.

Part III argues that the factors for assessing state-created danger in domestic violence cases applied by the court in Okin provide a means to remedy the violation of victims' constitutional rights and may provide incentives for police enforcement of laws protecting victims from violence. Part Ill stresses the flexibility of the Okin factors and the Second Circuit's limited emphasis on the distinction between the police's acts of omission and acts of commission and the advantages of taking this approach over emphasizing the difference between action and inaction as other circuit courts do. Part III also applies the Okin factors to the facts of other cases to emphasize the flexibility of the factors. However, this Article cautions that applying the flexible standards in Okin may have its costs; therefore, Part III also provides some possible criticisms of the Okin factors. Despite these criticisms, however, the Okin factors' advantages outweigh the disadvantages.

1. "Serious and Unique Risks and Concerns of Domestic Violence." (16)

   Domestic violence is a prevalent problem that subjects women to extreme acts of physical violence. (17) As the literature well documents, domestic violence is a serious societal ill. (18) Historically, an assault between a male and a female in an intimate relationship, especially when they were married, was considered to be a private matter to be dealt with in the home and not by the state. (19) Unfortunately, the historical notion that a man and woman had become one upon marriage, and their relationship was therefore no longer a matter for public scrutiny, has remained firmly ensconced in our society even today. (20)

   In the United States, about 1.5 million women experience physical or sexual assault from a current or former intimate partner every year. (21) At least half of all American couples in the United States have experienced violence, with serious incidents of domestic violence occurring frequently among intimate partners. (22) Approximately twenty-five percent of all women in the United States have experienced physical or sexual violence perpetrated by a current or former intimate partner or date at some point in their lifetimes. (23) Despite the prevalence of domestic violence, there is still widespread failure to recognize how commonplace the problem is and to work towards ending it. (24)

   The police are often the first potential sources of protection and assistance that victims of domestic violence turn to for help. (25) But because of the notion that domestic violence is private, the police often fail to take appropriate steps to protect victims. (26) In the 1970s, feminist groups across the United States began to publicly criticize the police for their failure to effectively intervene in domestic violence cases. (27) There was a surge in civil action suits that served as a wake-up call for the police, but even this did not solve the problem. (28) States then began enacting mandatory arrest laws, (29) which would allow police officers to arrest perpetrators of domestic violence even when the victim did not want to file a complaint; these laws increased...