Brooks v. Knapp , 221 F. App'x 402 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0182n.06
Filed: March 7, 2007
No. 06-1352
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KENNETH BROOKS, SR., et al.,
Plaintiffs-Appellants,
v. On Appeal from the United
States District Court for the
ALAN KNAPP, et al., Eastern District of Michigan
Defendants-Appellees.
Before: BOGGS, Chief Judge, COOK, Circuit Judge, CARR, District Judge.*
James G. Carr, Chief District Court Judge. Plaintiffs are surviving family members of
Brenda Hernandez, who was murdered by her husband, Gilbert Hernandez. Claiming that the
defendant police officers, members of the defendant Waterford Township, Michigan, police
department, failed to protect Mrs. Hernandez from the danger posed by Mr. Hernandez, plaintiffs
asserted three claims under 42 U.S.C. § 1983: 1) violation of Mrs. Hernandez’s substantive due
process rights; 2) violation of familial association rights, as protected by the First and Fourteenth
Amendments; and 3) discrimination on the basis of gender [namely, unequal treatment of
*
The Honorable James G. Carr, Chief Judge of the United States District Court for the Northern
District of Ohio, sitting by designation.
No. 06-1352 2
domestic violence victims] under the Equal Protection Clause of the Fourteenth Amendment. In
addition plaintiffs asserted similar claims under Michigan laws.
The District Court granted the defendants’ motion for judgment on the pleadings pursuant
to Fed. R. Civ. P. 12(c). Plaintiffs appeal.
For the reasons that follow, we AFFIRM.
Background
Mrs. Hernandez first called the Township Police Department about threats from Mr.
Hernandez, from whom she was estranged, on August 25, 2000. She was at a 7-Eleven store,
afraid to return to her home because her husband had made a threatening phone call to her. The
police came to the store and escorted Mrs. Hernandez home. The officers encouraged Mrs.
Hernandez to stay that night with her parents.
A little over a month later, on October 2, 2000, Mrs. Hernandez applied for and received
a court-issued Personal Protection Order (PPO) against Mr. Hernandez. The PPO provided that
Mr. Hernandez was subject to arrest were he to violate the Order.
Thereafter, on October 20, 2000, Mrs. Hernandez filed for divorce. Mr. Hernandez was
formally served with the PPO on October 27.
On October 29, 2000, Mrs. Hernandez made a second call to the police. Mrs. Hernandez
told the police that Mr. Hernandez was threatening her and violating the PPO and had a gun.
When the police did not respond quickly, Mrs. Hernandez fled from her home with her son. Mr.
Hernandez followed them in his car. Because no one was at the residence when officers arrived,
they returned to the station without taking any action.
No. 06-1352 3
On December 25, 2000, the police were called again to the Hernandez residence. Mr.
Hernandez, who appeared visibly under the influence of drugs or drunk, had been threatening
Mrs. Hernandez. Mrs. Hernandez’s parents, the Brookses, had tried to intervene to enable their
daughter to leave. In response, Mr. Hernandez had pushed Mrs. Brooks into a chair, and had
begun kicking and beating Mr. Brooks. Neighbors called the police, telling them that Mr.
Hernandez was violating the PPO. In the meantime, Mr. Hernandez fled by car. The police
found Mr. Hernandez, stopped his vehicle, and arrested him for assault and violation of the PPO.
Mr. Hernandez was released by the next morning.
On December 26, 2000, Mr. Hernandez moved out of the family residence. On
December 28, 2000, Mr. and Mrs. Hernandez jointly revised the PPO in court, so that Mr.
Hernandez could be at the house for supervised parental visits. Mr. Hernandez was not allowed
to drink alcohol during these visits. On December 28th, the modified PPO took effect until
October 2, 2001.
Mrs. Hernandez next called the police about a month later, on February 4, 2001. She told
the police that Mr. Hernandez had called her and said, “Well we won’t have to worry about who
is awarded custody of our child because you will die bitch, plain and simple.”
Defendant Officer Drumb went to Mrs. Hernandez’ home. Mrs. Hernandez explained
that Mr. Hernandez had repeatedly been calling her at work, her parents’ home and her home,
and on her cell phone. She also told Officer Drumb that Mr. Hernandez had a gun and frequently
came to her home unannounced. Officer Drumb made note of the information, but made no
attempt to find or arrest Mr. Hernandez or locate and seize his firearm.
No. 06-1352 4
On February 6, 2001, Mr. Hernandez voluntarily checked himself into Harbor Oaks
Hospital as a psychiatric patient. He told the hospital he had a gun and wanted to kill himself.
The hospital released him four days later, on February 10, 2001.
Later that same day, police came to the Hernandez residence after receiving a hang-up
911 call. Defendant Officers Drumb, Knapp, and Vanderbilt arrived to find Mr. Hernandez at the
residence. He had physically assaulted Mrs. Hernandez and ripped the phone out of the wall
when she had tried to call for help. Mr. Hernandez appeared drunk or on drugs.
The police officers detained Mr. Hernandez and put him in the back of a squad car. They
did not handcuff Mr. Hernandez and allowed him to make phone calls from the car. The officers
did not arrest Mr. Hernandez. Instead, they released him. After doing so, they told Mrs.
Hernandez that an extra patrol car would be on duty to protect her. With this reassurance, Mrs.
Hernandez stayed at her residence that night.
A few hours later, in the early morning on February 11, 2001, Mr. Hernandez broke into
the house, shot and killed Mrs. Hernandez, and killed himself.
On September 4, 2003, the parents of Mrs. Hernandez, Kenneth and Darlene Brooks,
filed suit individually and as representatives of Mrs. Hernandez’s estate. The defendants moved
for judgment on the pleadings on October 27, 2003, and plaintiffs filed a response on November
10, 2003. On August 13, 2004, Judge George Woods granted defendants’ motion in part and
denied it in part, ruling that the plaintiffs had pled all of the allegations adequately except the
Michigan constitutional violation and one of the substantive due process claims. Judge Woods
found the defendants had not met their burden of demonstrating qualified immunity.
No. 06-1352 5
Judge Woods retired shortly thereafter, and the case was transferred to Judge Lawrence
Zatkoff on August 26, 2004. On August 27, 2004, the defendants moved for reconsideration of
the August 13th order. Judge Zatkoff did not give plaintiffs the opportunity to respond to the
motion to reconsider either in writing or orally.
On October 5, 2004, Judge Zatkoff granted the defendants’ motion for reconsideration on
all claims, thus dismissing them, except for an equal protection claim against Waterford
Township. The plaintiffs filed their own motion for reconsideration of Judge Zatkoff’s ruling on
October 19, 2004, which was denied. On February 3, 2006, the plaintiffs voluntarily dismissed
the remaining equal protection claim to enable the present appeal. They filed a timely notice of
appeal on February 17, 2006.
Standard of Review
We review a judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). The ruling is
reviewed de novo, under the same standard applicable to a motion to dismiss under Rule
12(b)(6). Diegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 511-12 (6th Cir. 2001).
I. 42 U.S.C. § 1983 Substantive Due Process Claim
To prevail on their claim under 42 U.S.C. § 1983, the plaintiffs must show defendants: 1)
acted under color of state law; and 2) deprived plaintiff’s decedent of rights provided by the
United States Constitution. Upsher v. Grosse Pointe Pub. Sch. Sys., 285 F.3d 448, 452 (6th Cir.
2002).
In the present case, the police officers were acting in their official capacity and hence
under color of law.
No. 06-1352 6
Plaintiffs argue that the defendants deprived Mrs. Hernandez of substantive due process –
the right to life and liberty – when they allowed Mr. Hernandez to remain free while having
access to a gun.
The Supreme Court has held that the Due Process Clause generally does not impose
affirmative duties on the state to protect the interests of individuals. DeShaney v. Winnebago
County Dept. of Social Servs., 489 U.S. 189, 198 (1987). In DeShaney, the Court held that state
officials were not liable for injuries resulting from violent acts by third parties. Id. at 196 (“[O]ur
cases have recognized that the Due Process Clauses generally confer no affirmative right to
governmental aid, even where such aid may be necessary to secure life, liberty, or property
interests of which the government itself may not deprive the individual.”).
The Sixth Circuit has endorsed two exceptions to DeShaney whereby state actors have an
affirmative duty of care and protection - where they have a “special relationship” with an
individual, or where their conduct toward the individual results in a “state-created danger.”
Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998).
The “state-created danger” exception applies when the state either plays a role in creating
a danger to an individual or renders an individual more vulnerable to a danger. Kallstrom, 136
F.3d at 1066. In this case, the parties concur that plaintiffs base their claims on the officers’
failure to take more effective steps to incapacitate Mr. Hernandez, thereby creating a danger of
death or serious injury that otherwise would not have existed. Plaintiffs’ “state-created danger”
claim alleges that the failure of the officers to arrest Mr. Hernandez “emboldened” Mr.
Hernandez to return to the house and kill Mrs. Hernandez, which also increased Mrs.
Hernandez’s vulnerability to harm.
No. 06-1352 7
An individual’s “interest in preserving her life is one of constitutional dimension.”
Nishiyama v. Dickson County, 814 F.2d 277, 280 (6th Cir. 1987) (en banc). Individuals have,
accordingly, “a clearly established right under the substantive component of the Due Process
Clause to personal security and to bodily integrity.” Doe v. Claiborne County, 103 F.3d 495, 507
(6th Cir. 1996). Under DeShaney a state agent is liable for his or her acts that expose an
individual to harm that otherwise would not exist. Jones v. Union County, Tennessee, 296 F.3d
417, 428 (6th Cir. 2002) (“state-created danger” arises when the state affirmatively acts to expose
an individual to potential danger); Gazette v. City of Pontiac, 41 F.3d 1061, 1065 (6th Cir. 1994).
The facts of this court’s decision in Kallstrom, supra, exemplify a “state-created danger.”
In that case, three undercover Columbus, Ohio, police officers had been part of an investigation
of a large, violent gang. After charges were brought against eight members of the gang, defense
counsel requested and received personal information from the city about the three officers,
including bank account information, social security numbers, personal responses during a
polygraph examination, copies of drivers licenses, and home addresses. The lawyer, in turn, gave
that information to the defendants in the criminal case.
Suing under § 1983, the officers claimed that disclosure of such highly personal and
confidential information affirmatively placed them in danger. The Sixth Circuit agreed, and held
that the city had violated the officers’ substantive due process right to “personal security and
bodily integrity.” Kallstrom, 136 F.3d at 1063, 1067. The city had placed the officers in
“‘special danger’ by substantially increasing the likelihood that a private actor would deprive
them of their liberty interest in personal security.” Id. at 1067.
No. 06-1352 8
Under Kallstrom, a court asks whether the defendant, while aware of the risk being
created, took affirmative action that placed the victim in “special danger.” Id. at 1066. Stated
otherwise, the issue is whether the officers did anything “affirmative” to “embolden” the person
causing harm to another. Jones v. Reynolds, 438 F.3d 685, 703 (6th Cir. 2006) (“[W]here
officers enable or embolden a private actor to drive dangerously, they commit an affirmative act
for state-created-danger purposes.”).
Failure to act, as opposed to affirmative conduct, does not cause a “state-created danger”
to arise. Cartwright v. City of Marine City, 336 F.3d 487, 493 (6th Cir. 2003); Sargi v. Kent City
Board of Education, 70 F.3d 907, 912-13 (6th Cir. 1995).
Officer Drumb’s failure to do anything other than to detain Mr. Hernandez briefly on the
night before he killed Mrs. Hernandez is not actionable. Here, as in May v. Franklin County
Commissioners, 437 F.3d 579, 584-86 (6th Cir. 2006), officers who merely depart from the scene
of a domestic violence call without having taken steps to reduce the risk of harm cannot be held
liable under the “state-created danger” exception to DeShaney. Instead, they must have done
something affirmative to increase the harm beyond that of which they were already cognizant.
This is so, even where officers can be seen not only to have ignored or disregarded the
risk of injury, but to have condoned it. In Jones, supra, police officers arrived on the scene
shortly before the start of a drag race. One of the officers told one of the drivers to go ahead and
have the race. A spectator was killed when a driver lost control of his car. The district court
dismissed the suit brought on behalf of the victim’s estate, which alleged, inter alia, that the
officers were culpable for having created a “state-created danger.”
No. 06-1352 9
Affirming the dismissal, this court held that the officers’ acquiescence in the drag race
had not amounted to an affirmative act giving rise to a state-created danger. The decedent had,
by being and remaining a spectator, already exposed herself to the risk of injury. The officers’
action or inaction, the court held, had not made her “more vulnerable” to the risk. 438 F.3d at
691.
In the instant case, plaintiffs claim the defendant officers increased the decedent’s
vulnerability to danger when they failed to arrest Mr. Hernandez. Plaintiffs also point out that
Mrs. Hernandez relied on the officers’ assurances that additional patrols would be provided and
consequently remained at her home on the night before her death. But, as the Supreme Court
stated in DeShaney, no “affirmative duty to protect arises . . . from the State’s . . . expressions of
intent to help” an individual at risk. 489 U.S. at 200; see also Bright v. Westmoreland County,
443 F.3d 276, 284 (3d Cir. 2006) (officers who, three weeks before a probation violator killed a
child, had assured the child’s father that the probation violator would be arrested held not liable
under state-created danger doctrine). The affirmative assurance of additional patrols was not
sufficient to increase Mrs. Hernandez’s general vulnerability to harm. Consequently, plaintiffs’
state-created danger claim, either based on the officers’ failure to arrest Mr. Hernandez or their
assurances of additional patrols to Mrs. Hernandez, fails.
II. Right to Familial Association
The Sixth Circuit has briefly examined, in dicta, the right to familial association in the
context of a § 1983 claim for deprivation of the parent-child relationship. Kottmyer v. Maas, 436
F.3d 684, 689 (6th Cir. 2006); Purnell v. City of Akron, 925 F.2d 941, 948 n.6 (6th Cir. 1991).
No. 06-1352
We express no views about that dicta: the present claim for familial association fails in
any event because Mr. Hernandez, not the officer defendants, killed the victim. See Kottmyer,
436 F.3d at 690 (“These decisions [re. a right to familial association] rely on the notion that
parents have a constitutionally protected liberty interest in the companionship and society of their
children, which parents are permanently deprived of when their children are killed by a state
actor.”) (emphasis supplied).
The officers, furthermore, have qualified immunity from the familial association claim.
A reasonable officer would not have known he was putting the familial rights of Mrs.
Hernandez’s parents and child at risk as a matter of law when he declined, after responding to the
domestic violence call on February 10, 2001, to take action to incapacitate Mr. Hernandez. See
generally Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (officers have qualified immunity if
the officer “does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.”).
III. Equal Protection Claim
To establish an equal protection claim under § 1983, plaintiffs must show the decedent
was a member of a protected class and she was intentionally and purposefully discriminated
against because of her membership in that class. Boger v. Wayne County, 950 F.2d 316, 325 (6th
Cir. 1991). The class in this case is victims of domestic violence, or female victims of domestic
violence. The alleged unequal treatment is the failure to arrest perpetrators of domestic violence,
thereby placing victims at risk of harm.
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No. 06-1352
States may not discriminate in providing police protection. Hakken v. Washtenaw
County, 901 F. Supp. 1245, 1249 (E.D. Mich. 1995); see also Deshaney, 489 U.S. at 197 n.3
(“The State may not, of course, selectively deny its protective services to certain disfavored
minorities without violating the Equal Protection Clause.”); Stevens v. Trumbull County Sheriffs’
Dep’t, 63 F. Supp. 2d 851 (N.D. Ohio 1999).
Plaintiffs fail to state Mrs. Hernandez was intentionally and purposefully discriminated
against because of her status as a domestic violence victim. Plaintiffs’ equal protection claim
centers around an allegation that Waterford Township had a policy or custom “to provide less
protection to female victims of domestic violence than to victims of non-domestic attacks.”
Plaintiffs’ complaint further alleges this policy, custom, and practice of gender discrimination
was the “motivating factor behind the disparate treatment of female domestic violence victims by
Officer Alan Knapp, Officer G. Drumb, [and] Officer Vanderbilt.” The alleged disparate
treatment was a failure to provide adequate police protection, failure to arrest Mr. Hernandez,
and the failure to properly enforce the original and modified PPOs.
Plaintiffs voluntarily dismissed their equal protection claim against Waterford Township,
in order to directly and immediately appeal Judge Zatkoff’s Opinion on Defendants’ Motion for
Reconsideration.
The complaint alleges a discriminatory policy or custom within the Township, and that
this policy led the individual officers to discriminate against Mrs. Hernandez. The complaint,
however, does not sufficiently allege that Officers Knapp, Drumb, and Vanderbilt, in their
individual capacity, acted in a discriminatory manner toward Mrs. Hernandez, for any reason.
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No. 06-1352
Plaintiffs have not sufficiently alleged individual acts of discrimination, let alone discrimination
based on Mrs. Hernandez’s membership in a particular class. Boger v. Wayne County, 950 F.2d
at 325. For this reason, the equal protection allegation against the police officers in their
individual capacities fails.1
AFFIRMED.
1
This court has indirectly acknowledged claims for discrimination against domestic
violence victims as a protected class. See Jones, supra., 296 F.3d at 427; Blankenship v. City of
Cleveland, 1998 WL 152774, *1 (6th Cir.).
12