Soto v. Carrasquillo
Case Date: 01/13/1997
Court: United States Court of Appeals
Docket No: 96-1024
|
January 22, 1997 United States Court of Appeals For the First Circuit ____________________ No. 96-1024 FLOR MARIA SOTO, Plaintiff, Appellee, v. CARLOS FLORES, ET AL., Defendants, Appellants. ____________________ ERRATA SHEET ERRATA SHEET The opinion of this Court issued on January 13, 1997 is corrected as follows: On cover sheet, line 26: substitute "Laffitte" for "Lafitte". On page 21, line 2: substitute "Kneipp v. Tedder, 95 F.3d 1199, ______ ______ 1201 (3d Cir. 1996)" for "Kneipp, 95 F.3d at 1201". ______ United States Court of Appeals for the First Circuit ____________________ No. 96-1024 FLOR MARIA SOTO, Plaintiff, Appellant, v. CARLOS FLORES, ET AL. Defendants, Appellees. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Hector M. Laffitte, U.S. District Judge] ___________________ ____________________ Before Torruella, Chief Judge, ___________ Campbell, Senior Circuit Judge, ____________________ and Lynch, Circuit Judge. _____________ ____________________ Jose Enrique Colon Santana, with whom Gary Broida was on brief, ___________________________ ___________ for appellant. Vannessa Ramirez, Assistant Solicitor General, Department of _________________ Justice, with whom Carlos Lugo-Fiol, Solicitor General, was on brief ________________ for appellees. ___________________ January 13, 1997 ____________________ LYNCH, Circuit Judge. On April 21, 1991, Angel LYNCH, Circuit Judge. _____________ Rodriguez shot to death his two young children and then killed himself. This tragedy occurred four days after Rodriguez's wife, Flor Maria Soto, complained to the police about the physical and emotional abuse she suffered at Rodriguez's hands. The police, knowing Rodriguez had threatened to kill Soto and her family if Soto went to the police to have him jailed for his spousal abuse, nonetheless violated their obligations of confidentiality and informed Rodriguez of Soto's complaints. Having done so, the police did not jail Rodriguez or take steps to protect Soto and her family. Soto's lawsuit alleges that Rodriguez did what he had threatened to do and that the state created this danger. Rather than pursue any claims available to her under Puerto Rican law, Soto chose to bring suit in federal court alleging constitutional tort theories. Soto brought suit under 42 U.S.C. 1983, claiming that the actions of the defendants, Carlos Flores, a police officer, and Ismael Betancourt-Lebron, Puerto Rico's superintendent of police, violated her and her children's rights to substantive due process and to equal protection of the laws. The district court granted summary judgment in favor of the defendants. We do not reach the difficult question of whether Soto, in her capacity as a representative of her dead children, has presented a due process claim that would survive summary judgment, because we find that the defendant officers are protected by qualified immunity on that claim. As to the equal protection claim, we adopt a standard for measuring such claims in domestic violence cases. Testing the evidence against that standard, we find that Soto has not adduced sufficient evidence of discriminatory intent to survive summary judgment. Accordingly, we affirm the district court. I. Facts We recite the facts in the light most favorable to the plaintiff, the party opposing summary judgment. Flor Maria Soto married Angel Rodriguez, nicknamed Rafi, in 1981. Rodriguez and Soto had two children: Sally was born in 1983, and Chayanne, a boy, in 1988. Approximately a year into their marriage, Rodriguez began to abuse Soto emotionally and physically. This abuse, often connected to Rodriguez's drinking, continued throughout their marriage. The abuse was apparent to family and friends. As one neighbor put it, "anyone who visited them could tell that [Soto] was an abused wife." Despite his constant mistreatment of Soto, Rodriguez never abused the children. Rodriguez did gardening and vehicle repair work for the police officers at Palmer Police Station, a sub-station of the Rio Grande precinct. Rodriguez was friends with several of the officers from Palmer Station, including Luis -3- 3 Carrasquillo-Morales ("Carrasquillo")1 and defendant Carlos Flores-Moreira ("Flores"). Rodriguez visited the station almost daily. Many of the officers, when on patrol in the area, would visit the Rodriguez-Soto home for coffee or a drink. Flores and Rodriguez were particularly friendly; about once a week, during his patrol rounds, Flores would stop by the house for an hour's visit. On Wednesday, April 17, 1991, Rodriguez struck Soto about her face and neck, bruising her, and called her insulting names. When Rodriguez fell drunkenly asleep, Soto gathered the children and went to her mother's house. Soto's mother, Hipolita Vega, convinced her to go to the police and file a complaint. In nine years of beatings, some of them worse than the one on April 17, Soto had never sought help because she believed that the police would do nothing, because she had nowhere to go, and because she was afraid of Rodriguez. Rodriguez had threatened her with a gun on several occasions and told her that he would kill her and other members of her family if she went to the police. Knowing that Rodriguez was friendly with the police, Soto feared that the police would do nothing except tell Rodriguez that she had complained. ____________________ 1. Carrasquillo was originally named as a defendant in this action, but defaulted in the district court proceedings. In order to have a final judgment from which she could appeal, Soto sought and was granted a voluntary dismissal of her claim against Carrasquillo. -4- 4 On that night, despite her fear, Soto went with her mother and her children to the Palmer Police Station. When she arrived, she was met by Flores, who was the desk officer on duty. Flores could see that Soto was crying and marked with bruises, "pretty ugly hematomas." Soto explained that Rodriguez had beaten her. Flores then radioed for the patrol officers to come in and take her complaint, referring to Soto on the radio as "Rafi's wife" and saying that it was a Law 54 case. During the fifteen to twenty minutes that Soto and Flores waited for the patrol officers to arrive, Flores told Soto that he himself had domestic violence problems, and that his wife wanted him to be put in jail. He urged Soto to patch things up with Rodriguez. Soto responded by telling Flores that Rodriguez's beatings were too much to stand and that, as Flores knew, Rodriguez was a heavy drinker, who became violent when drunk. Soto told Flores about everything that Rodriguez had done and what he would do to her. Flores offered Soto the opportunity to stay overnight at the station. Sergeant Orta,2 the supervisor, arrived, and Flores told him that Soto was "the lady with the Law 54 complaint." When the patrol officers, Carrasquillo and Jose Serrano, arrived, Flores said, "This is Rafi's wife," and told them ____________________ 2. The district court denied a belated motion to add Sergeant Orta as a defendant. No appeal is taken from the denial of that motion. -5- 5 that she was there on a Law 54 complaint. Carrasquillo took Soto into an interview room, three steps away from the desk at which Flores sat. Soto was nervous and crying. The door to the interview room remained open, and Flores listened to everything that was said in Soto's conversation with Carrasquillo. In the interview room, Soto told Carrasquillo about Rodriguez's behavior, and showed him her bruises. Carrasquillo asked Soto whether she wanted Rodriguez jailed. Soto replied by explaining her situation to the officers. Specifically, she told Carrasquillo that Rodriguez had told her that if she put him in jail, he would get out quickly because his family had money and that he would then kill her. She told Carrasquillo that Rodriguez had told her that if she attempted to put him in jail, he would kill her mother and sisters so that she would go to the wake and he would then kill her there. Having told the police officers about Rodriguez's threats, Soto asked them to do what was appropriate. Although Soto did not use the words "domestic violence complaint," she believed that by describing her situation to the officers she was initiating the complaint process. Carrasquillo wrote down everything she said during the interview, and Soto assumed that he was drafting a complaint against Rodriguez. -6- 6 Soto's effort to get police assistance came a year and a half after a new law aimed at curbing domestic violence had gone into effect. In November 1989, the Puerto Rican legislature enacted one of the nation's most comprehensive domestic violence laws, the Domestic Abuse Prevention and Intervention Act, known popularly as "Law 54." In addition to defining criminal domestic violence broadly, Law 54 makes arrest of an abuser mandatory whenever an officer has grounds to believe that Law 54 has been violated. P.R. Laws Ann. tit. 8, 631-635, 638 (Supp. 1995). Police officers are required to take all steps necessary to prevent abuse from recurring, including providing the complainant with information about social services and, if she expresses concern for her safety, with transportation to a safe place. Id. 640. Law 54 also requires that police officers file a ___ written report on all domestic violence incidents, whether or not any charges are ever filed. Id. 641. The police ___ superintendent is charged with establishing "norms to guarantee confidentiality with regard to the identity of the persons involved in incidents of domestic violence." Id. ___ Implementing regulations issued by the superintendent of police detail the officer's responsibilities, and instruct that arrest determinations are not to be affected by irrelevant factors, including victim reluctance. Rules and Procedures to Attend to Domestic Violence Incidents, Puerto -7- 7 Rico Police General Order No. 86-26m (Rev. 1). The regulations explicitly state that police attempts at mediation or reconciliation shall not substitute for arrest. Id. at 4. The regulations require that domestic violence ___ reports be kept confidential, in separate files, and that copies only be issued upon a court order. Id. at 19. These ___ regulations explicitly recognize that: Domestic violence . . . frequently ends in intra-family homicide and it affects all the components of the family, including the children. Id. at 1. ___ Despite this legal framework, at the conclusion of his interview with Soto, Carrasquillo took no action. Carrasquillo did not tell Soto about the availability of battered women's shelters or about procedures for obtaining an order of protection. Nor did he prepare a domestic violence report. Instead, Carrasquillo wrote up an "Other Services Report," which falsely indicated that Soto had visited the police solely for advice relating to child custody.3 Soto returned to Vega's house. ____________________ 3. Soto contends that she signed a domestic violence report at the station that night and that the Other Services Report produced by the defense is an after-the-fact forgery, and part of a cover-up, which included pressure on Flores to commit perjury. Her claim of forgery is supported by the testimony of a handwriting expert, and Flores's testimony suggests that pressure was put on him. -8- 8 Carrasquillo discussed Soto's complaint with his supervisor, Sergeant Orta, that evening. When Sergeant Orta signed the Other Services Report he did so despite information that this was a Law 54 situation and that the men under his supervision were not doing what the law required. Sergeant Orta discussed the "Other Services" report with Flores.4 Flores told him that Rodriguez and Soto had marital problems because Rodriguez was an alcoholic. Flores said he would talk to Rodriguez the next day. Sometime the next day, April 18, Officer Flores, despite knowing of Rodriguez's threats to commit murder if Soto went to the police in an effort to jail him, went to the Rodriguez-Soto home and told Rodriguez about Soto's visit to the police station. That night, Rodriguez arrived at Vega's home, very upset. He told Vega and Glorivee Soto, Soto's sister, that "the boys" from the police station had told him that Soto wanted to put him in jail and that he would not allow that to happen. Vega managed to calm him and he left. The next day, Friday, April 19, Rodriguez ran into the plaintiff at a local tire shop. Rodriguez, visibly ____________________ 4. A police department internal investigation followed the killings. On August 31, 1992, the examiner concluded that Carrasquillo and Sergeant Orta, the supervisor who signed the Other Services Report prepared by Carrasquillo, merited reprimands for failing to act pursuant to the norms established by Law 54. Neither Betancourt-Lebron nor Flores was a subject of that investigation, although Flores was interviewed regarding his knowledge of the events. -9- 9 upset, told plaintiff that Officer Flores had been to their home and had told him that Soto was going to throw him in jail. Soto, fearing violence, denied it. She tried to calm Rodriguez down, but Rodriguez kept repeating that Flores had told him she wanted him jailed. On Saturday, the twentieth of April, Rodriguez again came to Vega's home and invited Soto to the beach. Soto refused to go, but the children, excited at the rare prospect of an outing with their father, got into the car. Rodriguez did not bring the children back that day as he had promised. Soto went twice to try to pick them up, but both times Rodriguez refused to give the children to her. Finally, at 8:00 p.m. on April 21, Soto, mindful that the next day was a school day, went back to the family home determined to get the children. As she stood on the lawn, Soto heard both children tell Rodriguez that she had arrived. Sally shouted, "Run, Mommy, please run!" Rodriguez then shot his son in the forehead. Soto heard Sally say to her father, "Daddy, no, Daddy, no." Rodriguez then shot Sally through her mouth. Soto heard a third shot. Rodriguez had killed himself. When the police, including Carrasquillo and Serrano, arrived, Rodriguez was dead. The children were still alive and the police rushed them to the hospital. Both children were dead on arrival. -10- 10 On the wall of the room where Rodriguez shot his children, Rodriguez had written a message which confirmed that Flores had told him of Soto's visit to the police. The message said, among other things, "you left me, and Officer Flores knows it," and "Law 54, which is only a tool for women to make men do whatever they want, is not liberty." II. Procedural History Soto's initial section 1983 complaint alleged that the acts and omissions of Officer Flores deprived her of her rights to due process and to equal protection of the laws. Additionally, she alleged that Superintendent Betancourt- Lebron was liable for his failure to properly train and supervise his subordinate officers. After discovery, Flores and Betancourt-Lebron moved to dismiss, and, in the alternative, for summary judgment. In addition to arguing that Soto's claims lacked merit, the defendants asserted that they were entitled to the protections of qualified immunity. In an opinion dated January 20, 1995, the district court granted the motion for summary judgment. As to the due process claim, the court held that, because an individual may not bring a section 1983 action for deprivation of due process based on injury to a family member, the death of Soto's children did not give rise to a cognizable claim. Soto v. Carrasquillo, 878 F. Supp. ____ ____________ 324, 327 (D.P.R. 1996)(citing Valdivieso-Ortiz v. Burgos, 807 ________________ ______ -11- 11 F.2d 6, 7-10 (1st Cir. 1986)). As to the equal protection claim, the court held that Soto had failed to adduce enough evidence on discriminatory intent and causation to defeat summary judgment. Soto, 878 F. Supp. at 331-32. ____ Soto requested reconsideration; as part of her motion, she asked for leave to amend her complaint to bring the action as a representative of her children. The district court treated the complaint as amended, but dismissed the claim on behalf of the children, holding it barred by DeShaney v. Winnebago County, 489 U.S. 189 (1989). The court ________ ________________ accordingly denied Soto's motion for reconsideration. Soto appeals. III. The Section 1983 Claims Soto presses two distinct claims. First, she alleges that the defendants' actions violated her and her children's rights to due process. Second, Soto asserts that the defendants had a custom or policy of providing less protection to victims of domestic violence than to victims of other assaults, that this was the result of gender discrimination, that this caused her injuries, and that defendants thus violated her right to equal protection. We consider each of these claims in turn. A claim under section 1983 has two essential elements. First, the challenged conduct must be attributable to a person acting under color of state law (including Puerto -12- 12 Rico law); second, the conduct must have worked a denial of rights secured by the Constitution or by federal law. Martinez v. Colon, 54 F.3d 980, 984 (1st Cir.), cert. denied, ________ _____ ____________ 116 S. Ct. 515 (1995). The second element requires the plaintiff to prove not only a deprivation of federal right, but also that the defendant's conduct was a cause in fact of the alleged deprivation. See Maldonado-Santiago v. ___ __________________ Velazquez-Garcia, 821 F.2d 822, 831 (1st Cir. 1987)("Section ________________ 1983 imposes a causation requirement similar to that of ordinary tort law."). A. The Due Process Claim _____________________ Soto claims that the deaths of her children are attributable to the defendants' actions, and that those actions deprived both her and her children of what she terms a "substantive due process life interest."5 We examine separately Soto's individual claim and her claim on behalf of her children. 1. Soto's Individual Claim. ________________________ ____________________ 5. Some victims of abuse have brought section 1983 claims alleging that official nonfeasance deprived them of procedural due process. See, e.g., Meador v. Cabinet for __________ ___ ____ ______ ____________ Human Resources, 902 F.2d 474, 476-77 (6th Cir.), cert. ________________ _____ denied, 448 U.S. 867 (1990); Coffman v. Wilson Police Dep't, ______ _______ ___________________ 739 F. Supp. 257, 263-66 (E.D. Pa. 1990). In these cases, the plaintiffs argued that state law made certain protective processes mandatory, and thus created entitlements subject to due process protection against deprivation. See, e.g, ____ ____ Coffman, 739 F. Supp at 263-64. However, from our reading of _______ the record, Soto does not appear to make a procedural due process claim. Thus, we do not address whether the protective provisions of Law 54 create such an entitlement. -13- 13 The district court held that Soto, in her individual capacity, could not bring a due process claim based on injury to her children. Soto, 878 F. Supp. at 327. ____ On appeal, Soto argues both that the district court erred in so holding and that the injury she complains of is not limited to the loss of the companionship of her children, but also comprehends the mental anguish she has suffered personally. We review the district court's grant of summary judgment de novo. Dominique v. Weld, 73 F.3d 1156, 1158 (1st __ ____ _________ ____ Cir. 1996). We examine, viewing the record in the light most favorable to the nonmoving party, whether the district court correctly applied the substantive law and whether any disputed facts have the potential to change the outcome of the suit. See Martinez v. Colon, 54 F.3d 980, 983-84 (1st ___ ________ _____ Cir. 1995). There is no absolute constitutional right to enjoy the companionship of one's family members free from all encroachments by the state. See Valdivieso-Ortiz v. Burgos, ___ ________________ ______ 807 F.2d 6, 8 (1st Cir. 1986). "State action that affects the parental relationship only incidentally . . . even though the deprivation may be permanent . . . is not sufficient to establish a violation of a identified liberty interest." Pittsley v. Warish, 927 F.2d 3, 8 (1st Cir.), cert. denied, ________ ______ ____________ 502 U.S. 879 (1991). Thus, the death of a family member will -14- 14 not ordinarily give those still alive a cognizable due process claim under section 1983. See Manarite v. ___ ________ Springfield, 957 F.2d 953, 960 (1st Cir.)(child could not sue ___________ police for failure to prevent father's suicide), cert. _____ denied, 506 U.S. 837 (1992); Valdivieso-Ortiz, 807 F.2d at 10 ______ ________________ (stepfather and siblings had no cause of action where prison guards beat inmate to death). Here, the defendants' actions, despite the tragic outcome, were not specifically aimed at ending or affecting Soto's relationship with her children. Nor can Soto successfully distinguish her case from the cited precedents of this court by pointing to her own mental anguish. The question is not one of a degree of suffering, but whether the plaintiff can establish a violation of federal right. While Soto's loss was of enormous, heartbreaking magnitude, the Constitution does not protect against all harms. She herself was not deprived of a constitutionally protected interest, and she may not bring a section 1983 due process claim on her own behalf. 2. Soto's Claim as a Representative of Her _____________________________________________ Children. ________ In deciding Soto's motion for reconsideration, the district court granted Soto's request to amend her complaint so as to bring a claim as a representative of her children. The court then found that the children's claim was foreclosed -15- 15 by DeShaney, dismissed the claim and denied the motion for ________ reconsideration of the due process claim. Review of denial of a motion for reconsideration is for abuse of discretion. See Airline Pilots Ass'n v. ___ ______________________ Precision Valley Aviation, Inc., 26 F.3d 220, 227 (1st Cir. ________________________________ 1994). For purposes of this appeal, we consider Soto's complaint, as amended, to determine if the district court committed legal error in holding that Soto, as a representative of her children, failed to state a claim upon which relief could be granted. See Cooter & Gell v. ___ _______________ Hartmarx, 496 U.S. 384, 405 (1990) (district court abuses ________ discretion when it makes error of law); cf. Glassman v. ___ ________ Computervision Corp., 90 F.3d 617 (1st Cir. 1996)(in _____________________ reviewing denial of leave to amend complaint, court considers whether complaint as amended would state cognizable claim). Defendants argue, and the district court held, that any claim on behalf of Soto's children is barred by DeShaney, ________ which held that "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." 489 U.S. at 197. We agree that if Soto's argument were simply that Flores and his brother officers failed to protect her children from Rodriguez, it would clearly fail. See, e.g, Pinder v. ___ ___ ______ Johnson, 54 F.3d 1169 (4th Cir.) (en banc) (rejecting due _______ process claim based upon police failure to protect domestic -16- 16 violence victim), cert. denied, 116 S. Ct. 530 (1995); _____________ Balistreri v. Pacifica Police Dep't, 901 F.2d 696 (9th Cir. __________ _____________________ 1990)(same). However, Soto alleges more than a mere failure to protect. She claims, and her claim has support in the record, that Officer Flores visited Rodriguez at home and told him that Soto had been to the police station and wished to jail him. She further alleges that when he did so Flores was fully aware of how Rodriguez would likely react to this information, not only because Flores knew Rodriguez's character well, but also because Flores knew that Rodriguez had threatened to murder her and her family members if she went to the police and attempted to stop his abuse by having him jailed. Soto alleges that Flores misused information that he had obtained in an official capacity, and that this affirmative act rendered her children more vulnerable to the danger posed by Rodriguez and thus led to their deaths. Soto alleges that Flores's conduct violated a duty of constitutional dimension owed to Soto's children. DeShaney clearly establishes that the state does not have a ________ constitutional duty to protect its citizens from private violence. DeShaney, 489 U.S. at 197. However, in DeShaney, ________ ________ the Supreme Court also recognized a distinction between the case before it and other cases in which the state created the risk faced by the plaintiff: -17- 17 While the State may have been aware of the dangers that [the plaintiff] faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. [By returning the plaintiff child to his abusive father, the State] placed him in no worse position than that in which he would have been had it not acted at all. Id. at 201. The situation here arises from the state actor's ___ affirmative acts, which played a part in creating the danger to the children and rendered them more vulnerable to harm. Soto thus contends that it falls outside the scope of DeShaney, in that it "implicates the alternate framework of ________ 1983 liability wherein a plaintiff alleges that some conduct by an officer directly caused harm to the ________ plaintiff."6 Pinder, 54 F.3d at 1176 n.* (emphasis in ______ original); see also Dwares v. City of New York, 985 F.2d 94, ________ ______ ________________ 99 (2d Cir. 1993)("[T]hough an allegation simply that police officers had failed to act upon reports of past violence would not implicate the victim's rights under the Due Process Clause, an allegation that the officers in some way had ____________________ 6. The distinction between duty-to-protect cases and danger- creation cases was colorfully described by the Seventh Circuit in Bowers v. De Vito, 686 F.2d 616 (7th Cir. 1982). ______ _______ While holding that "there is no constitutional right to be protected by the state against being murdered by criminals or madmen," Judge Posner pointed out that "[i]f the state puts a man in a position of danger from private persons and then fails to protect him, . . . it is as much an active tortfeasor as if it had thrown him into a snake pit." Id. at ___ 618. -18- 18 assisted in creating or increasing the danger to the victim would indeed implicate those rights."). Not every negligent, or even willfully reckless, state action that renders a person more vulnerable to danger "take[s] on the added character of [a] violation[] of the federal Constitution." Monahan v. Dorchester Counseling _______ ______________________ Ctr., Inc., 961 F.2d 987, 993 (1st Cir. 1992). In a creation __________ of risk situation, where the ultimate harm is caused by a third party, courts must be careful to distinguish between conventional torts and constitutional violations, as well as between state inaction and action. See id.; Pinder, 54 F.3d ___ ___ ______ at 1175-78. The scope of any permissible section 1983 action based on a state-created danger theory is a difficult question. See, e.g., Pinder, 54 F.3d at 1175; Monahan, 961 ___________ ______ _______ F.2d at 993-94. Because we find that this claim may be resolved on immunity grounds, we choose not to reach this question. 3. Qualified Immunity. ______________________ Assuming arguendo that Soto had stated a claim that Flores and Betancourt-Lebron violated her children's constitutional rights, the issue becomes whether the defendants are entitled, as they argue, to qualified immunity from suit. There are two prongs to qualified immunity analysis. See St. Hilaire v. Laconia, 71 F.3d 20, 24 (1st ___ ___________ _______ -19- 19 Cir. 1995). First, the court must determine, as a matter of law, whether the constitutional right in question was clearly established at the time of the alleged violation. Id. If ___ the right is clearly established, the court must then ask whether a reasonable similarly situated officer "should have understood that the challenged conduct violated" that right. Id. ___ To begin, Soto's arguments against qualified immunity appear to misconstrue the doctrine. Soto argues, with evidentiary support, that not only did the defendants violate Law 54 and the pertinent regulations, but also that they knew or reasonably should have known that they were violating it. According to Soto, "[n]o good faith defense is possible if the official knew he was violating plaintiff's rights." The Supreme Court has considered, and rejected, this approach to qualified immunity. Davis v. Scherer, 468 _____ _______ U.S. 183, 193-95 (1984). In Davis, the plaintiff argued that _____ official conduct that contravened a statute or regulation could not be objectively reasonable because officials may reasonably be expected to conform their conduct to legal norms. Id. at 193. The Court rejected this approach because ___ it would "disrupt the balance . . . between the interests in vindication of citizens' constitutional rights and in public officials' effective performance of their duties." Id. at ___ -20- 20 195. "Officials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision." Id. at ___ 194; see also Borucki v. Ryan, 827 F.2d 836, 847 n.18 (1st ________ _______ ____ Cir. 1987). Accordingly, Soto's arguments with regard to Law 54, even if her alleged facts are true, do not resolve the qualified immunity question. The focus is rather on whether there is clearly settled law on the constitutional violation at issue. This inquiry is sharpened by two narrowing principles. The right must be stated with sufficient particularity so that a "'reasonable officer would understand that what he is doing violates that right'" and the right must have been "clearly established at the time of the defendants' alleged improper actions, and . . . not . . . through the use of hindsight." Souza v. Pina, 53 F.3d 423, _____ ____ 425 (1st Cir. 1995) (quoting Anderson v. Creighton, 483 U.S. ________ _________ 635, 640 (1987)). The issue is thus whether the constitutional duty not to affirmatively abuse governmental power so as to create danger to individuals and render them more vulnerable to harm was clearly established in April 1991, the time of the events giving rise to this suit. What the Third Circuit termed the "'state-created danger theory,'" Kneipp v. Tedder, 95 F.3d 1199, 1201 (3d ______ ______ Cir. 1996), has been recognized by some federal courts as a viable mechanism for establishing a constitutional claim at -21- 21 least since 1979. See White v. Rochford, 592 F.2d 381, 383 ___ _____ ________ (7th Cir. 1979) (finding Due Process Clause violation where "unjustified and arbitrary refusal of police officers to lend aid to children endangered by the performance of official duty . . . ultimately result[ed] in physical and emotional injury to the children"); see also Cornelius v. Town of ________ _________ ________ Highland Lake, 880 F.2d 348 (11th Cir. 1989), cert. denied, ______________ ____________ 494 U.S. 1066 (1990); Wood v. Ostrander, 879 F.2d 583 (9th ____ _________ Cir. 1989), cert. denied, 498 U.S. 938 (1990); Checki v. ____________ ______ Webb, 785 F.2d 534, 538 (5th Cir. 1986). In DeShaney, the ____ ________ Supreme Court acknowledged that state actions that create dangers or render private citizens more vulnerable to harm could amount to constitutional violations. See DeShaney, 489 ___ ________ U.S. at 201. Since DeShaney, seven circuit courts of appeals ________ have recognized that state-created dangers may, in proper circumstances, give rise to constitutional claims under section 1983. See Kneipp, 95 F.3d at 1208 (citing cases and ___ ______ tracing history of state-created danger theory). While this history would appear to militate in favor of finding that there is clearly established law in this area, in 1991 the First Circuit had not yet addressed the issue of state-created dangers. The first case from this court to discuss the contours of that doctrine was Monahan _______ v. Dorchester Counseling Ctr., Inc., 961 F.2d 987 (1st Cir. ________________________________ 1992), and that case held that, on the facts alleged, there -22- 22 was no constitutional violation. Of course, a violation of clearly settled law may be found even where the Supreme Court and the circuit in question have not specifically addressed the question. See 2 Nahmod, Civil Rights and Civil Liberties ___ ________________________________ Litigation: The Law of Section 1983, 8.07, at 134-35 (3d _____________________________________ ed. 1991) (citing cases). However, we cannot extract a clearly established right from a somewhat confusing body of caselaw through the use of hindsight, or "permit claims of qualified immunity to turn on the eventual outcome of a hitherto problematic constitutional analysis." Martinez-Rodriguez v. Colon- __________________ ______ Pizarro, 54 F.3d 980, 989 (1st Cir. 1995). The history of _______ the state-created danger theory, although recently comprehensively described by the Third Circuit in Kneipp, is ______ an uneven one. The distinction between affirmatively rendering citizens more vulnerable to harm and simply failing to protect them has been blurred. Moreover, courts have sometimes found that a given action, while rendering the plaintiff more vulnerable to danger, did not amount to a constitutional violation, but instead should be viewed as a state law tort. See, e.g., Cannon v. Taylor, 782 F.2d 947, ____ _____ ______ ______ 950 (11th Cir. 1986). It is more recent judicial opinions that have begun to clarify the contours of this doctrine. See, e.g., Kneipp, 95 F.3d at 1208-10; Pinder, 54 F.3d at ____ _____ ______ ______ 1174-1177. -23- 23 We conclude therefore that, in 1991, "the contours of the right were [not] sufficiently plain that a reasonably prudent state actor would have realized not merely that his conduct might be wrong, but that it violated a particular constitutional right." Martinez-Rodriguez, 53 F.3d at 988. __________________ Accordingly, we find that the defendants are entitled to the protections of qualified immunity, and affirm the district court's grant of summary judgment on plaintiff's substantive due process claim. B. The Equal Protection Claim __________________________ In DeShaney, the Supreme Court acknowledged that ________ "[t]he State may not, of course, selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause." 489 U.S. at 197 n.3. Soto alleges an equal protection violation in her assertion that "[d]efendants have a custom, policy and practice of treating complaints from, or on behalf of, women threatened with violence in domestic disputes differently from other complaints of violence. Defendants have discriminated on the basis of the sex of the complaining victim." The district court measured Soto's equal protection claim7 under the standard for such claims brought by domestic ____________________ 7. The district court correctly found that Valdivieso- ___________ Ortiz's bar on section 1983 actions for due process _____ violations based on the death of a family member has not been extended to equal protection claims. Soto, 878 F. Supp. at ____ 328 n.6. -24- 24 violence victims that was first articulated by the Tenth Circuit in Watson v. City of Kansas City, 857 F.2d 690 (10th ______ ___________________ Cir. 1988), and subsequently adopted by several other circuits. Under the Watson standard, a plaintiff seeking to ______ defeat a motion for summary judgment must: proffer sufficient evidence that would allow a reasonable jury to infer that it is the policy or custom of the police to provide less protection to victims of domestic violence than to other victims of violence, that discrimination against women was a motivating factor, and that the plaintiff was injured by the policy or custom. Ricketts v. City of Columbia, 36 F.3d 775, 779 (8th Cir. ________ _________________ 1994) (citing Watson, 857 F.2d at 694), cert. denied, 115 S. ______ ____________ Ct. 1839 (1995). The district court found that Soto had adduced sufficient evidence to create a genuine issue as to whether the police force had a custom or policy of providing less protection to victims of domestic violence than to other assault victims. Soto, 878 F. Supp. at 329. We agree. The ____ court also found that plaintiff had failed to meet her burden in opposing summary judgment8 on either the discriminatory intent prong or the causation prong of the Watson standard. ______ Id. at 332. ___ ____________________ 8. It was part of Soto's prima facie case to proffer sufficient evidence of discriminatory intent. See, e.g., __________ Lipsett, 864 F.2d at 896. In opposing summary judgment, it _______ was Soto's burden to adduce sufficient evidence of that intent to create a trialworthy issue. See National ___ ________ Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 743-44 (1st _________________ ______________ Cir.), cert. denied, 115 S. Ct. 2247 (1995). ____________ -25- 25 In a matter of first impression for this court, we adopt the Watson standard for section 1983 equal protection ______ claims brought by domestic violence victims. Several other circuits have considered similar claims. These tragedies follow a sadly similar pattern; an abuse victim, after repeatedly seeking police protection from her abuser, is gravely injured or killed. The victim, or her next of kin, claims under section 1983 that law enforcement policies provide lesser protection to victims of domestic violence and discriminate on the basis of gender. See, e.g, Navarro v. __________ _______ Block, 72 F.3d 712 (9th Cir. 1996); Eagleston v. Guido, 41 _____ _________ _____ F.3d 865 (2d Cir. 1994), cert. denied, 116 S. Ct. 53 (1995); ____________ Ricketts, 36 F.3d at 775; Brown v. Grabowski, 922 F.2d 1097 ________ _____ _________ (3d Cir. 1990), cert. denied, 501 U.S. 1218 (1991); McKee v. ____________ _____ City of Rockwall, 877 F.2d 409 (5th Cir. 1989), cert. denied, ________________ ____________ 493 U.S. 1023 (1990); Watson, 857 F.2d at 690. ______ Under the standard we adopt today, Soto must show that there is a policy or custom of providing less protection to victims of domestic violence than to victims of other crimes, that gender discrimination is a moti |