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The special relationship doctrine in domestic protective order cases.

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.


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 arrest the husband, who later set fire to the family home;(23) where the victim did not know of or rely on the police promise of protection to his father;(24) and where the police left the scene of a violent domestic incident without investigation after a neighbor's assurance that everything was quiet.(25)

This strict standard culminated in Kircher v. City of Jamestown.(26) Deborah Kircher was forced into her car and abducted from a drug store parking lot by an unknown attacker. Two passersby heard her scream for help and pursued her car in their vehicle. After losing sight of Kircher's car, they encountered a police officer who was assisting a disabled motorist. They gave the officer a description of the abductor, the license plate number and a description of Kircher's car. The officer assured the two he "would call it in."

The two Good Samaritans drove by Kircher's house two or three times to look for her car, but eventually they ceased their efforts and made no further attempts to contact the police. The officer, however, neither reported the incident nor took any further action to locate Kircher and the vehicle. Kircher was subsequently raped, beaten, and locked in her car trunk for more than 12 hours by her assailant.

The court of appeals held that a special duty did not exist between Kircher and the police because there was no direct contact between her and the officer. Consequently, there was no reliance on the intervention of police. The court applied no element of flexibility to the contact requirement and emphasized "this contact must be between the injured party and the municipality."

As a dissent highlighted, however, Kircher had been affirmatively prevented from contacting the police on her own behalf. Her contact with the two passersby, the dissent pointed out, plausibly established a "clear, continuous causal link" between the initiating scream, the officer's promise to act, the rescuers' decision to cease their efforts and the later attack. But the majority was not persuaded and refused to impose liability despite the "sympathetic circumstances."


New York is uniquely suited for the discussion of the failure to intervene, in either a public or official capacity, as its history of societal desensitization magnifies the larger question of cultural causation. Berliner v. Thompson (footnote 7) represents an egregious set of facts that exemplify the issue of official nonfeasance and the need for response reform in all branches of government with regard to orders of protection and the special duty doctrine.

Tina Marie Berliner separated from her husband Robert in September 1985. She and her daughter moved into her in-laws' home. On September 30, Robert assaulted her outside that house, and a week later he attacked her again, this time raping her inside the house. Tina reported this latter incident to the county sheriff's office on October 10, but she did not file a criminal complaint because she was scheduled to receive an order of protection in family court the following day.

The order was issued on October 11, a Friday, and Tina told her mother-in-law, Carol, that she felt confident the sheriff would act if the order was violated. However, the deputy sheriffs assigned to serve the order failed to do so before they left work for the extended Columbus Day weekend. During that weekend, Robert physically assaulted Tina. She notified the police, but an arrest warrant was not prepared.

On returning to work on Tuesday, the deputies, unaware of the order's violation, could not determine Robert's whereabouts. Instead, they telephoned his residence and read the order's contents into his answering machine.

On Wednesday, the deputies drove to Robert's home to serve the order. One block from his residence, they observed a man with a rifle; they believed the person to be either Robert or a burglar. When they tried to question the man, who was indeed Robert, he ran. The deputies gave chase but lost sight of him.

Robert entered his parents' home carrying the rifle and struck Carol with it when she tried to disarm him. Carol ran outside and implored one of the deputies, who was using his radio, "Please help me, he is going to kill her, please come and help me." The deputy did not respond to her. Tina could be heard screaming from inside the house, "Help me, somebody help me, he is going to kill me," and then, "He is killing me." The deputy ultimately entered the house by kicking in the door, but by that time, Robert had stabbed Tina to death. Four to six minutes had elapsed from the time Carol ran from the house until the police first attempted assistance.

Tina's father-in-law sued for wrongful death against the deputies, the county sheriff's office, and the county.

Municipal liability in Berliner rests on two distinct theories: breach of a civil duty, the failure to serve the order of protection; and the breach of a criminal duty, the failure to intervene and apprehend Robert before the murder. The appeals addressed the criminal inquiry: Were the police required to intervene because a special relationship had been established with Tina through the combination of the protective order and the pursuit of Robert? However, this two-prong suit is especially important to the discussion of protective orders.

Protective orders in New York state are designed as civil remedies, and they redress wrongs against an individual, not society in general.(27) The New York legislature modified the enabling statute in 1977 to create a choice of forum for the victim of domestic violence, allowing those seeking an order of protection the choice between filing an action in either family court or criminal court arising from a single incidence of violence.(28) The state legislature modified the statute again in 1990 to allow a grace period for forum changes when it became evident the two were mutually exclusive, but it continued to deny coextensive jurisdiction.(29)

New York is the only state to deny a petitioner the right to maintain both a motion for an order of protection and a criminal complaint from the same incident.(30) This mutually exclusive forum statute, commonly known as the "right of election," substantially furthers the dichotomy between minor--that is, civil violations--and felonious assault--a societal, as "[c]ivil protection order remedies are distinct from and supplementary to criminal justice functions."(31)

This is important to the discussion of police nonfeasance liability, as the legislative definition of domestic violence is questionable. If the legislature recognizes this type of violence as wholly individual, must the courts force the police to do the opposite? This not only ignores the severity of the domestic violence problem, which too often culminates in death, but it also continues to deny the victim of domestic violence the validation of being a "true" crime victim. The decision between perceived personal safety, which is the order of protection, and the criminal sanction, which may ultimately deter the batterer more than the civil order, further elucidates the dilemma faced by battered women. The order of protection continues to be a wholly individualized remedy, as opposed to a societal one.

An element of immediacy was added to the New York statute in 1981 on the initiative of the Governor's Task Force on Domestic Violence.(32) Two distinct tasks were sought to be accomplished with the new protective order legislation--the first to provide "immediate evidence of a court order" and the second to "clarify police powers and responsibilities in family matters."(33) Intending to provide immediate relief to the victim of domestic violence, the statute provides that "the presentation of a copy of a protection order to any peace ... or police officer shall constitute authority for him [or her] to arrest the person charged with violating the terms of such an order to protect ... and bring such a person before the court, and otherwise, so far as lies within his [or her] power, to aid in securing the protection such order was intended to afford."(34)

The courts have also explicitly recognized and adopted the latter goal: "In enacting Family Court Act [sections] 168, the legislature intended to encourage police involvement in domestic matters, an area in which police have exhibited a reluctance to intervene."(35) Subsequent legislation reinforced the immediacy goal, entitling any person seeking an order "to file a petition without delay on the same day such a person first appears at the family court" and authorizing a hearing on the same day as the filing.(36)

The link between municipal liability and the order of protection lies in Section 168 of the New York Family Court Act. While immediacy may be recognized by the legislature, police and the courts with regard to protective services for battered women, it is the elusive definition of "relief" and the allocation of the responsibility to provide such relief to the appropriate governmental branch that presents the most insurmountable obstacle to battered women. Whether legislation has adequately addressed the question of domestic violence by providing the forum, the enabling statute and the authority to enforce the order, whether the judiciary fully implements the sanctions granted it in the legislation, and whether the police make use of the own grant of authority remain to be seen.

The confusion, however, has led to inevitable conflict and unsatisfied expectations on all levels: individual, judicial and societal. Is the order of protection mere paper, or do women have the right to expect some modicum of safety? "Relief" may be the functional equivalent of police enforcement or a mere judicial (or legislative) acknowledgment of the need for some kind of relief.

The failure of the deputy sheriffs in Berliner to intervene prior to the murder illustrates the definitive Achilles heel of protective orders. There is a gap between the judicial authority to issue protective orders and police enforcement, coupled with a significant lack of deterrent effect precipitated by the orders themselves. "[A]n order without enforcement at best offers scant protection and at worst increase the victim's danger by creating a false sense of security."(37)

Once the protective order has been obtained, significant issues arise when the police are actually available but fail to protect the person with the order. However, the focus of the special relationship must be the reasonableness of the police actions. This standard was established in Sorichetti v. City of New York,(38) the seminal New York case regarding the police's affirmative duty to act in a domestic violence situation.

In Sorichetti, the infant plaintiff and her mother had been issued three orders of protection against the abusive father. When the father failed to return the child after a temporary visitation, the police refused to take action, despite the mother's fears of harm to the child and the father's previous threats of violence. The father subsequently attacked the child with a saw, screwdriver and knife, and she was left permanently disabled.

The court of appeals held that while the order of protection did not in itself create a municipal liability, the police are made aware of a possible violation of the order and were obligated to respond and investigate. The order, coupled with the police's knowledge of the father's propensity for violence was enough to dissolve the presumption of immunity, establish a special duty and subject the police's actions to a test of "reasonableness."

After Sorichetti, the presence of a protective order implicated a lower standard of proof for police nonfeasance actions. In Kircher, the court of appeals explicitly distinguished the exception created by the protective order issued in Sorichetti because the order signified the municipality's prior involvement in the domestic turnmoil and justified relaxing the direct contact requirement.

While Sorichetti may have addressed several important issues in the realm of domestic violence and the obligation to intervene where a protective order exists, it left unaddressed a host of other issues.

Although Sorichetti provided answers to cer-

tain questions, others remain that the court did

not answer.... Unanswered questions include:

(1) whether a protective order, or similar judi-

cial instrument, issued to an individual is suffi-

cient on its own to impose a duty on the police

to respond in a reasonable manner when the

holder alleges that a third party is in immediate

danger of being harmed by the person against

whom it is issued;

(2) whether the police know or a person's vio-

lence is sufficient pn its own to impose a duty;


[and (3)] whether reasonable reliance by the

holder of protective order that police will pro-

vide assistance is sufficient on its own to create

a special duty.(39)

These issues have been left to the various departments of the New York Appellate Division, the state's intermediate appellate court, to address. Berliner provides the Third Department's answers.

The trial court in Berliner denied the defendant deputies' motion for summary judgment. The court initially held the presence of the protective order precluded proof of the Cuffy factors (footnote 22) and was a per se special relationship, based on the holding in Sorichetti. It overturned the trial court's ruling in part and held that a protective order will be prima facie evidence of only three of the four necessary factors: a duty to act, knowledge that harm could result from inaction, and reliance by the plaintiff. All that remains, the court said, is the direct contact necessary to apprise the police of the existence of an order and its violation.

However, summary judgment was inappropriate because the issues of triable fact still to be apprised include whether

the deputies knew or should have known that

they were in front of the decedent's residence,

that [Carol] Berliner was referring to the dece-

dent when she made her pleas for help ... [and]

whether the two deputies knew or should have

known that the assailant was [Robert] Berliner,

[and f]inally if these questions are answered in

the affirmative, there remains the question of

whether their actions were reasonable under the


This effectively sets the standard for the special relationship in the Third Department: protective orders will automatically satisfy three of the four necessary factors, thereby conserving judicial assets and time. Berliner is one case that has established a distinctive approach to the special relationship doctrine.

The First Department also has had opportunity to consider this issue. In Harris v. City of New York(41) a stalking victim was promised that his house would be monitored after many hospital consultations with the police regarding his attack from an estranged family member. The assault victim was justified, said the court, in relying on police assurances of protection from an identified attacker. After the assailant shot the plaintiff's father, the cooperation offered to the police in the attacker's apprehension amounted to a special relationship for the father and his immediate family, who had been threatened with future violence. When the victim's daughter subsequently was shot, the court held that a special relationship had been created based on the police promises and the victim's cooperation with their efforts to apprehend the stalker.

This case also indicates the willingness of the lower courts to dispense with much of the special duty doctrine in favor of facilitated tests for affirmative duty. Although this case does not address the problem of intra-family violence per se, a useful analogy may be applied to the domestic violence situation where there exists an identified attacker and a police assurance.


The special duty doctrine has failed to facilitate its underlying goal--governmental efficiency. Discarding it may be a step the New York courts are not ready to take,(42) although other states have done so.(43) Legislative reform also may not occur. The enabling statute is in place, along with the albeit-lacking forum choices, and the penalties are delineated. While fear may be a legitimate human factor to consider in evaluating the reasonableness of police officers who fail to protect citizens, the special relationship requirement does not address these issues. Rather, it "promotes blatant indifference and disregard for the community's wellbeing instead of providing competent police service."(44)

The concept driving Berliner bears repeating--the demand for reasonableness is not equivalent to an absolute duty to act. "The use of an ordinary negligent standard would not impose an absolute duty upon a municipal police department to protect its citizens and enforce its laws; nor would it require that the police be at the scene of every crime. Rather, police departments would be held to a standard of due care, and their liability appropriately limited by the requirements of proximate cause and foreseeability."(45) If even further protection is desired, a jury instruction utilizing a "reasonable police officer" standard may be imposed, much in the same way courts have begun to impose a "reasonable woman" standard in sexual harassment cases.(46)

Judicial response might counteract the practical failures of protective orders by shifting the order's underlying motive from preventative to punitive. Deterrence may be achieved in some cases by strict application of the language of the statute and the harshest imposition of remedies, which is six months in jail in New York. However, because there are no inherent risks first associated with the special relationship doctrine, the order of protection should serve to create a prima facie exception to municipal immunity.

In the interest of judicial economy, the order of protection should be an exception to the special duty doctrine because of its inherent nature as a collective product. Because the legislature has expressly limited the class of persons who qualify to receive an order and has expressly granted executive authority to their enforcement via statute, the allocation of police resources is not at a risk of judicial "second guessing." As the plaintiff's counsel in Berliner asserted, "In these circumstances, the number of citizens to which the police owe a duty, the need to second guess legislative/executive resource allocation decisions, and the prospect of ruinous liability are not concerns."(47)

Ironically, in Delong v. County of Erie(48) the New York Court of Appeals imposed liability where the victim telephoned 911 to report the presence of a burglar in her home. The victim was assured by the operator that the police would arrive "right away." The address was recorded incorrectly, however, and the police were unable to find the correct house. The victim was stabbed and killed by the burglar about a half hour after the initial call was made and after the police had ceased their efforts to find the victim's house.

The court held that the creation of the 911 emergency number engendered an expectation of protection, encouraging the victim not to flee her home but to wait for police intervention. This expectation of protection is easily analogous to the protective order. If an emergency telephone number gives rise to liability for the failure to protect a faceless stranger with which the police have had fleeting contact, the reluctance of the courts to discard the special relationship doctrine for the failure to protect the holder of a restraining order is inexplicable. After all, the protective order was created by the legislature as a mode of protection similar to the 911 system. In addition, the holder of a protective order must assume a greater initiative than the 911 dialer and actually appear before the court to receive the "protection."

Monetary concerns are not sufficiently worthy to support immunity in protective order cases. Because the United States has grown in size and power since the days of the original 13 colonies, the economics of governmental immunity has shifted against those of the individual. "The primary problem with the special duty requirement is that it is a poor risk spreader; the costs of municipal negligence are thrust upon the individual instead of being borne by the entire community."(49)

The government, even the smallest of municipalities, has resources that generally are unavailable to the average citizen, the power to tax being a principal resource. It may also be more economically sound to invest in the prosecution of civil protective order violations when confronted with a long-term financial projection. As one author pointed out, "If unable to rely upon a promise of police assistance, a citizen confronted with a potentially dangerous situation may engage in 'self-help' remedies, which may result in additional injuries to the victim or to innocent third parties--injuries that could have even avoided by prompt police response."(50)

If the class of persons owed a duty needs to be narrowed even further, a true Sorichetti test should be implemented. An order of protection plus a single violation would serve to establish a special relationship by alerting the police of the potential for danger. This would make the special relationship doctrine more compatible to the context of domestic violence, where there is a readily identifiable attacker, rather than the situation presented in Kircher, where the attacker was unknown to the victim and consequently to the police and judicial system. New York has recognized the inherent difference between the identified and unidentified attacker, so to apply the Kircher standard of immediate direct contact with the police and the victim would be diametrically opposed to the court's rationale.

This rationale also could be extended to incorporate the need to encourage cooperation between the police and public, as advanced in Schuster. By alerting the police to a protective order violation, the potential victim collaborates with the police in the apprehension of a lawbreaker, albeit a civilly sanctioned lawbreaker. This should trigger the reciprocal duty of the government to protect the battered woman, within the bounds of reasonableness, either by intervention in the criminal activity or by subsequent civil liability.

From an executive standpoint, liability may never be completely eliminated, despite increased actions to enforce these orders. The question must be asked: How far must police officers go to avoid liability? Would the municipality be subject to suit if, to take Berliner as an example, the deputies had rushed to aid Tina and thereby startled Robert into misfiring? This question may be answered on the affirmative, which leads to a distinct "no-win" situation, one undesirable to impose on an often overburdened profession.

Mandatory arrest policies and increased "insider" education may be the only available options for executive implementation. Mandatory arrest where there is probable cause to believe a domestic assault has occurred, even where the victim refuses to file a complaint, would remove some of the inevitable police guesswork as to whom is dangerous.(51) An example of such a policy is the one adopted in 1986 by the City of Albany which states: "[I]t is the policy of the Albany Police Department to respond to every call involving a domestic dispute, and to consider domestic violence as criminal conduct which should be investigated as would any other crime."(52)

The police are given the unenviable task of distinguishing between criminal and minor violence. Some jurisdictions, however, have instituted mandatory arrest policies on their own, most notably New York City, which began its policy as a response to the $2 million Sorichetti decision. This is a concept rapidly gaining approval across the country. In 1985, a survey of 173 police agencies in cities with populations of more than 100,000 revealed that a third had pro-arrest policies, whereas only 10 percent had policies encouraging arrest the previous year.(53)

The deterrent effect of pro-arrest policies is evident. The National Crime Survey reveals that within six months of a domestic violence assault, a repeat assault occurred to only 15 percent of victims who telephoned the police following the attack, but to 41 percent of those who did not contact the police.(54) "Each arrest ... performs both individual and group functions, it deters violence by the arrestee and helps classify violent behavior as illegal in the eyes of the offender, victim and community at large."(55) With the steadily increasing reliance on police intervention, hard and fast rules may lessen the decisionary burden on officers.

It is important to note a pro arrest policy would not help women such as Tina Berliner. However, if the implementation of these policies serve no other purpose, they may protect against ultimate liability by providing proof of reasonable actions. "Non-response and arrest avoidance practices in domestic violence cases must be abandoned to save the local government from high damage awards."(56)

The deterrent effect of mandatory arrest policies on the reporting of domestic violence, however, may have a detrimental effect on an already underreported crime. A phone call to the police also may serve a valuable de-escalation function during the intra-family dispute. Consequently, the incidence of domestic violence may not decline with a pro-arrest policy in place, but reticence to contact the authorities may lead to a deceptive decrease in the statistical study of domestic violence. In addition, more serious injuries may result from the lack of any de-escalation force, and fewer medical services may be sought as a fear of "detection" rises.

An internal system of checks and balances may also provide a valuable liability assessment. Each domestic violence police call would be surveyed by a panel of police officers in conjunction with neutral outsiders, social workers or psychologists, to ascertain if the proper procedures were followed and to suggest remedies or changes. A review system would only be successful if it occurs in a completely non-adversarial environment where records are not kept to be filed with officer evaluations. The underlying object would be prevention, not punishment.

A modification of this approach was utilized in the consent decree signed by the New York City Police Department as a resolution of Bruno v. Codd,(57) a class action suit brought by a group of battered women. The consent decree held that the duty to respond to domestic situations included the duty to arrest in cases alleging felonies or the violation of protective orders, and for officers to provide written justification for refraining from arrest in accordance with the decree.

This "insider" education approach also addresses the concern for flexibility of police actions. The modern counterpoint to a concern for flexibility is the distinction between "discretionary and ministerial" professions.(58) Discretionary occupations involve risk-taking and the immediate exercise of judgment. In contrast, ministerial professions are inherently contemplative. From this, the argument is advanced that judges and legislators may be intrinsically unqualified to ascertain the liability of police officers in any situation, as the judicial and legislative functions are ministerial, whereas law enforcement is instinctive.

Consequently, attempts to subject police officials to legislative or judicial rule structures have bred animosity, rather than cooperation, between the various governmental branches. Ironically, both judges(59) and legislators(60) enjoy absolute immunity for acts performed in the course of their employment.


Municipalities have a substantial interest in preventing inadequate police responses to domestic violence situations, either in the prevention of liability or the loss of life. Societal ambivalence has increased the need for reliance on the intervention of the police and not the general public. The special relationship doctrine fails to address these modern goals.

The doctrine is not a creature of legislative reform, as is the order of protection, but rather the product of an old dog attempting to perform a new trick. In its purest form, the doctrine fails to reconcile itself with the question of modern municipal liability for police nonfeasance where a protective order exists and results in extended litigation and societal disillusionment in both the police and judicial systems.

Modification of the doctrine must occur through a variety of judicial or executive responses or by an abandonment of the special duty requirement in its entirety. It is only through consistent and efficient coordination between these two branches of government that women like Tina Marie Berliner will be safe under the watchful eye of the corner police officer.

(1.)PETER FINN & SARAH COLSON, CIVIL PROTECTION ORDERS: LEGISLATION, CURRENT COURT PRACTICE AND ENFORCEMENT 1 (1990) [hereinafter FINN & COLSON]. Arkansas and Delaware have no enabling legislation for these orders.

(2.)See Gary R. Brown, Battered Women and Temporary Restraining Orders, 10 WOMEN'S RTS. L. REP. 261, 265 (1988) [hereinafter Brown].

(3.)See Note (Matthew Litsky), Explaining the Legal System's Inadequate Response to the Abuse of Women: Lack of Coordination, 8 N.Y. L. SCH. J. HUM. RTS. 149 (1990).

(4.)Gail D. Cox, The Court of St. Joan, Nat'l L.J., Nov. 9, 1992, at 1, 39.

(5.)Note (Janice L. Grau), Restraining Order Legislation for Battered Women: A Reassessment, 16 U.S.F. L. REV. 703, 740 (1982). In Chicago there were 9,000 orders and extensions issued in 1987. FINN & COLSON, supra note 1, at 1. In Massachusetts, 45,000 orders were issued statewide in 1991. Adrian Walker, Third of Court Orders Flouted, Boston Globe, Sept. 30, 1992, at B1.

(6.)There were 6,632 reported violations of New York state protective orders in 1990. N.Y. Division of Criminal Justice Services, 1990 Criminal Justice Annual Report 104 (1991).

(7.)Berliner v. Thompson, 578 N.Y.S.2d 687, 688 (App.Div. 3d Dep't 1992).

(8.)In 1986, more than 30 percent of female murder victims were killed by their husbands or boyfriends. Federal Bureau of Investigation, Uniform Crime Reports 11 (1986).

(9.)Cuffy v. City of New York, 505 N.E.2d 937 (N.Y. 1987).

(10.)154 N.E.2d 534 (N.Y. 1958).



(13.)See Ruseell v. Men of Devon, 100 Eng.Rep. 359 (1788).

(14.)Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).

(15.)Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821).

(16.)See STREET, supra note 12, at 8.

(17.)Nichols v. United States, 74 U.S. (7 Wall.) 122 (1868).

(18.)N.Y.Ct.Cl. Act [sections] 8 (McKinney 1983).

(19.)240 N.E.2d 860 (N.Y. 1968).

(20.)505 N.E.2d 937 (N.Y. 1987).

(21.)Id. at 940.

(22.)Sorichetti v. City of New York, 482 N.E.2d 70 (N.Y. 1985).

(23.)Yearwood v. Town of Brighton, 474 N.E.2d 612 (N.Y. 1984).

(24.)Cuffy, 505 N.E.2d at 941.

(25.)Merced v. City of New York, 551 N.E.2d 589 (N.Y. 1990).

(26.)543 N.E.2d 443 (N.Y. 1989).

(27.)W. PAGE KEETON et al., PROSSER & KEETON ON THE LAW OF TORTS [sections] 2, at 5-6 (5th ed. 1984) (distinguishing between crimes and torts).

(28.)N.Y. Fam. Ct. Act [sections] 821 (McKinney 1983).

(29.)N.Y. Fam. Ct. Act [sections] 812(2)(e) (McKinney 1983 & Supp. 1990).

(30.)Peter Finn, Statutory Authority in the Use and Enforcement of Civil Protection Orders Against Domestic Violence, 23 FAM. L.Q. 43, 44 (1989).

(31.)FINN & COLSON, supra note 1, at 2.

(32.)Governor's Bill Memorandum, Ch. 416, L. 1981, McKinney's 1981 Session Laws, page 2594.

(33.)N.Y. Fam. Ct. Act [sections] 168, commentary at 131 (McKinney 1983).

(34.)Id. at [sections] 168(1).

(35.)Sorichetti, 482 N.E.2d at 75.

(36.)N.Y. Fam. Ct. Act [sections] 153-c (McKinney 1983).

(37.)FINN & COLSON, supra note 1, at 49.

(38.)482 N.E.2d 70 (N.Y. 1985).

(39.)Note (Greg Anderson), Sorichetti v. City of New York Tells the Police that Liability Looms for the Failure to Respond to Domestic Violence Situations, 40 U. MIAMI L. REV. 333 (1986).

(40.)578 N.Y.S.2d at 689.

(41.)542 N.Y.S.2d 550 (App.Div. 1st Dep't 1989).

(42.)It is significant to note that Berliner was settled prior to trial of the substantive facts. See John Caher, Judge Seals Settlement in Suit in Woman's Killing, Albany Times Union, May 12, 1993, at A1.

(43.)Alaska--Adams v. State, 555 P.2d 235 (Alaska 1976).

Wisconsin--Coffey v. City of Milwaukee, 247 N.W.2d 132 (Wis. 1976).

Florida--Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla 1979).

Iowa--Wilson v. Nepstad, 282 N.W.2d 664 (Iowa 1979).

Arizona--Ryan v. State, 656 P.2d 597 (Ariz. 1982).

Colorado--Leake v. Cain, 720 P.2d 152 (Colo. 1986).

Nebraska--Maple v. Omaha, 384 N.W.2d 254 (Neb. 1986).

(44.)Comment (Gerald P. Krause), Municipal Liability: The Failure to Provide Adequate Police Protection--The Special Duty Doctrine Should be Discarded, 1984 WIS. L. REV. 499, 524 (1984) [hereinafter Krause].

(45.)Id. at 509-10.

(46.)Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991). This standard has been adopted in several other jurisdictions. See Eric J. Wallach & Alyse L. Jacobson, "Reasonable Woman" Test Catches On, Nat'l L.J., July 6, 1992, at 31.

(47.)Brief for Respondent at 22, Berliner v. Thompson, 578 N.Y.S.2d 687 (App.Div. 3rd Dep't 1992) (No. 64728).

(48.)457 N.E.2d 717 (N.Y. 1983).

(49.)Krause, supra note 44, at 509.

(50.)Id. at 517.

(51.)New York statute leaves "less serious attacks to the officer's discretion. N.Y. Fam. Ct. Act [sections] 168 (McKinney 1983).


(53.)Id. at 18, citing Crime Control Institute, Washington, D.C., press release, Jan 26, 1986.

(54.)Sheila M. Murphy, Orders of Protection and Battered Women's Syndrome, 23 LOY. U. CHI. L.J. 397, 399 n.11 (1986).

(55.)BROWN, supra note 2, at 266.

(56.)FIELDS, supra note 52, at 20.

(57.)396 N.Y.S.2d 974 (Sup.Ct. N.Y. Cty. 1977).

(58.)National Association of Attorneys General, Sovereign Immunity: The Tort Liability of Government and its Officials 13 (Sept. 1979).

(59.)Stump v. Sparkman, 435 U.S. 349 (1978).

(60.)Tenny v. Brandhove, 341 U.S. 367 (1951).
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Title Annotation:New York
Author:Monaco, Helen L.
Publication:Defense Counsel Journal
Date:Jul 1, 1994
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