Opinion
Civil Action No. 03-1507 Section "K" (5).
June 20, 2005
ORDER AND REASONS
Before the Court Defendants' Motion for Summary Judgment ( See Rec.Doc.46). Having reviewed the pleadings, memoranda, and relevant law, the Court GRANTS summary judgment as to the federal claims and DENIES summary judgment as to the remaining state negligence claim.
BACKGROUND
Plaintiffs in this matter are Johnny and Sandra Conerly, individually, and as the Provisional Tutor and Undertutrix of the minor children, Jordan Wilson and Adrian Fox. Johnny and Sandra Conerly are persons of full age and majority domiciled in the Parish of Washington, Louisiana. Defendants are the Town of Franklinton, Franklinton Police Department, Police Chief Lynn Armand, Sergeant James Holmes, and Detective William Stogner.
In this suit, plaintiffs allege that due to the failure of the police department in the Town of Franklinton, Felicia Fox was killed by Robert Toomer, Jr. on May 26, 2002, after he broke into her house. Plaintiffs outline a series of incidents that allegedly gave the police notice that Felicia Fox's life was in danger.
On May 17, 2002, plaintiffs allege that Fox was assaulted by Toomer at her residence in Franklinton. Fox called the police, and Patrolman Jay Herring responded. He was able to make Toomer leave the house, but no arrest was made. The arrest report indicates that Fox did not want to file charges and that the police officer issued a domestic violence form. The report also indicates that Fox said that she would get a protective order as soon as she could. ( See Rec.Doc.49, Exhibit 8).
On May 22, 2002, plaintiffs contend that Fox was assaulted and partially strangled by Toomer again at her home in Franklinton. Fox placed a call to the police again. Responding officers included the defendants, Sergeant James Holmes and Detective William Stogner. Plaintiffs maintain that no arrest was made or any official action taken by these officers. ( See Rec.Doc.1, Part VIII).
The next day on May 23, 2002, plaintiffs claim that Toomer assaulted Fox at her home. Fox's mother placed a call to the police who responded and arrested Toomer charging him with three counts of aggravated assault, illegal use of weapons, simple battery, and domestic violence. Sergeant Holmes was one of the arresting officers. Plaintiffs claim that Toomer attempted to shoot Fox in the face during the domestic incident. ( See Rec.Doc.49, p. 13). However, the arrest report indicates that the shotgun may have went off accidentally. ( See Rec.Doc.49, Exhibit 2). At the time of the arrest, Toomer was also in violation of his probation for being convicted for marijuana use in Washington Parish, Louisiana. ( See Rec.Doc.1, Part VIII, IX, X).
At around noon of May 23, 2002, plaintiffs allege that Fox was assaulted by two of Toomer's friends, Shaquanta McClain and Rhonda LNU. ( Id., Part XI) A call was made to the Franklinton Police. Sergeant Revier and defendant Stogner responded but no arrest was made. ( See Rec.Doc.49, Exhibit 15).
LNU indicates that this person's last name is unknown.
On May 23, 2002, Toomer was released from prison. Plaintiffs contend that he should not have been released because he was in violation of his probation. They argue that a revocation hearing should have been held before allowing Toomer to be released. Plaintiffs, Fox, and Alex Weary claim that they complained to Chief Lyn Armand about the quick release of Toomer, and their belief that Toomer had actually been generally present at the Fox residence when she was beaten by Toomer's friends. ( See Rec.Doc.1, Part XII).
Fox filed a petition to obtain a restraining order on May 24, 2002, and order was issued the same day. ( See Rec.Doc.55, Exhibit 18). At approximately midnight May 25, 2002, five hours before Fox's murder, plaintiffs allege that Toomer attempted to break in despite the additional locks Fox placed on the outside of her mobile home. Fox was in her home with her children and Colie Wilson. She telephoned the police, and Sergeant James Holmes, who was involved in the May 23 arrest of Toomer, and an additional unknown officer came to the scene and found Toomer but did not arrest him. Plaintiffs also maintain that officers did not take statements from Fox or Colie Wilson. ( Id., Part XIII).
Plaintiffs allege that a call was made to the Franklinton Police Department during the late hours of May 25 or the early hours of May 26, but the officer did not respond because he already told Fox to lock her door and keep it locked.
On May 26, 2002, at approximately 5:00 a.m., Toomer allegedly returned to Fox's home and shot her twice, killing her. Toomer left the home but was injured by a gunshot wound inflicted by Colie Wilson. The Franklinton Police Department was notified and Toomer was arrested for second degree murder of Felicia Fox. ( Id., Part XV).
Plaintiffs filed suit on May 27, 2003, alleging three causes of action against defendants. First, plaintiff brings a claim under 42 U.S.C. § 1983, alleging that defendants' custom or policy of giving a lower priority to black female victims of domestic violence is a violation of the Equal Protection Clause of the Fourteenth Amendment. Second, plaintiffs claim that the Town of Franklinton, the Franklinton Police Department, and the named law enforcement officers failed to fulfill the affirmative obligations set forth in Louisiana Revised Statutes 14:79(c), which provides that police officers shall use every reasonable means, including immediate arrest, to enforce a protective order. Third, plaintiffs claim that defendants failure to properly train its law enforcement officers in responding to domestic violence caused Felicia Fox's death.
May 26, 2003 was Memorial Day. Therefore, May 27, 2003 was the final day the plaintiffs could have filed suit.
Defendants bring this motion for summary judgment contending that plaintiffs can raise no genuine issue of material fact, and thus, defendants are entitled to judgment as a matter of law. Specifically, defendants maintain that (1) the equal protection claim should be dismissed because there is no evidence that establishes invidious discrimination; (2) plaintiffs' claim based on the violation of a protective order should be dismissed because no protective order was in effect at the time of the alleged incident; and (3) plaintiffs' failure to train claim is merely conclusive. ( See Rec.Doc.46).
There was some difficulty locating the temporary restraining order that plaintiffs allege Ms. Fox obtained on May 24. After the motion for summary judgment was filed, the TRO was located, and defendants filed a supplementary memorandum to reflect this fact.
LEGAL STANDARD
Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed.2d 202 (1986).
The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed.2d 265 (1986). Once the movant meets this burden, the burden shifts to the non-movant "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. "[M]ere allegations or denials" will not defeat a well-supported motion for summary judgment. Fed.R.Civ.P. 56(e). Rather, the non-movant must come forward with "specific facts" that establish an issue for trial. Id.
When deciding a motion for summary judgment, the Court must avoid a "trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts" are tasks for the trier of fact. Anderson, 477 U.S. at 255. To that end, the Court must resolve disputes over material facts in the non-movant's favor. "The party opposing a motion for summary judgment, with evidence competent under Rule 56, is to be believed." Leonard v. Dixie Well Service Supply, Inc. 828 F.2d 291, 294 (5th Cir. 1987). However, the burden of demonstrating the existence of a genuine issue is not met by "metaphysical doubt" or "unsubstantiated assertions." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quoting Matsushita, 475 U.S. at 574). The Court must "resolve factual controversies in favor of the nonmoving party, but only where there is an actual controversy, that is, when both parties have submitted evidence of contrary facts." Id. The Court does not, "in the absence of proof, assume that the nonmoving party could or would prove the necessary facts." Id. "[T]he mere existence of some factual dispute will not defeat a motion for summary judgment; Rule 56 requires that the fact dispute be genuine and material." Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995).
ANALYSIS
A. Equal ProtectionThe first question is whether plaintiffs, after conceding that they have no race or gender claims, can offer sufficient evidence to support a "class of one" equal protection claim under Fourteenth Amendment. The Fifth Circuit has generally acknowledged that victims of domestic violence can bring Equal Protection claims when they are victims of the state's intentionally discriminatory policies. Beltran v. City of El Paso, 367 F.3d 299, 304-305 (5th Cir. 2004). In order to bring a claim for intentional discrimination, the plaintiff must show "(1) the existence of a policy, practice, or custom of law enforcement to provide less protection to victims of domestic assault than to victims of other assaults; (2) that discrimination [based on a protected characteristic] was a motivating factor; and (3) that the plaintiff was injured by the policy, custom, or practice." Id. See also, Conerly v. Town of Franklinton, 2004 WL 1459560, at. p. 5.
Plaintiffs concede that there is insufficient evidence to support their race and gender claim. However, they maintain that they can establish a "class of one" equal protection claim, in that, they can show Fox's differential treatment was irrational and arbitrary. ( See Rec.Doc.49). In this way, the question presented to the Court is whether plaintiffs have a "class of one" equal protection claim as expressed in Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000).
In Olech, the U.S. Supreme Court recognized that equal protection claims can be brought by a single person alleging she is the victim of arbitrary and intentional discrimination. Id. The court held that a village could not require a single homeowner to have a 33 foot easement on her home, while permitting all others similarly situated to have a 15 foot easement. In this way, the plaintiff in a "class of one" equal protection claim need not show a custom or policy of discrimination.
Despite the reduced requirements in an Olech equal protection claim, the Fifth Circuit has required evidence of some improper motivation to maintain an equal protection claim in cases where selective enforcement is alleged. They court stated:
"[ Olech] merely stands for the proposition that single plaintiffs may bring equal protection claims. They need not proceed on behalf of an entire group. But this statement has nothing to do with whether they must assert membership in a larger protected class. The decision does not, therefore, alter our requirement of an improper motive, such as racial animus, for selective enforcement claims." See Bryan v. City of Madison, 213 F.3d 267, 277, fn. 17 (5th Cir. 2000).
The Fifth Circuit has elaborated on the notion of improper motive saying, "[T]o successfully bring a selective prosecution or enforcement claim, a plaintiff must prove that the government official's acts were motivated by improper considerations, such as race, religion, or the desire to prevent the exercise of a constitutional right." Beeler v. Rounsavall, 328 F.3d 813, 817 (5th Cir. 2003), citing Bryan, 213 F.3d at 276-77 (5th Cir. 2000). See also, Unique Properties v. Terrebonne Parish Government, 2004 WL 1278001, at *8, n. 43 (E.D. La. 2004).
Plaintiffs are alleging that the police selectively enforced the restraining order. Plaintiffs have conceded their gender and race claims, and do not suggest any other improper motivation on the part of defendants. Rather, they argue that the differential treatment was itself arbitrary or irrational. Such an allegation does not invoke the Equal Protection Clause because it does not indicate that defendants acted with an improper motive. That is, based on the evidence offered by plaintiff, a reasonable factfinder could not conclude that defendants chose not to enforce the order because of race, religion, color, sex, or to prevent the exercise of a constitutional right. Therefore, the Court grants summary judgment in favor of the defendants, and dismisses plaintiffs' equal protection claim.
B. Procedural Due Process
The second issue before the Court is whether plaintiffs can maintain a procedural due process claim against the Town of Franklinton in light of the Tenth Circuit decision in Gonzales v. Castle Rock, 366 F.3d 1093 (10th Cir. 2004). The Court finds that plaintiffs cannot maintain such a claim.
Although the issue was not specifically pled, the Court finds the Complaint alleges sufficient facts as to support such claim.
Before the primary inquiry of this section can begin, the Court must first address a threshold matter as to whether plaintiffs have sufficiently alleged this claim in their Complaint. "The notice pleading requirements of Federal Rule of Civil Procedure 8 and case law do not require an inordinate amount of detail or precision. St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 434 (5th Cir. 2000). "The function of a complaint is to give the defendant fair notice of the plaintiff's claim and the grounds upon which the plaintiff relies." Id. The test is whether "within the universe of theoretically provable facts, there exists a set which can support a cause of action under this complaint indulgently read." Covington v. Cole, 528 F.2d 1365, 1370 (5th Cir. 1976).
This claim is not artfully pled in plaintiffs' Complaint. However, plaintiffs allege that there was a restraining order and that defendants maintained a custom or policy of providing less police protection. ( See Rec.Doc. 1, Parts VIII, XVII). These allegations are sufficient to support the procedural due process claim. Given that the issue was acknowledged in preliminary telephone conferences with the parties and defendants raised the issue in a supplementary memoranda, the Court finds it appropriate to consider the procedural due process claim on this motion for summary judgment.
The Court acknowledges that discovery was not conducted on this particular issue. However, the reasoning on this issue considers the temporary restraining order and the Louisiana enforcement statutes on their face to determine if a procedural due process claim exists.
Generally, the state cannot deprive a person of life, liberty, or property without due process of law. U.S. Const. amend. XIV, § 1. The Castle Rock decision, applying the test set out in Board of Regents of State Colleges v. Roth, found a procedural due process claim existed where the police failed to enforce a temporary restraining order. 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
The Tenth Circuit began its inquiry with the familiar Roth test for determining whether a particular private interest is protected by the Due Process Clause of Fourteenth Amendment. The Roth test asks a court to "examine the precise nature of the private interest that is threatened by the State." Castle Rock, 366 F.3d at 1100, citing Lehr v. Robertson, 463 U.S. 248, 256, 103 S.Ct. 2895, 77 L.Ed.2d 614 (1983). Only then can a court "properly evaluate the adequacy of the State's process" in depriving the benefit. Id.
In order for the benefit to afford constitutional due process protection under Roth, it must qualify as a liberty or property interest. 408 U.S. 564, 92 S.Ct. 2701 A property interest is "created when a person has secured an interest in a specific benefit to which the individual has a legitimate claim of entitlement." Castle Rock, 366 F.3d at 1101, citing Roth, 408 U.S. at 576, 92 S.Ct. 2701 (internal quotations omitted). In the context of state-created benefits, a legitimate claim of entitlement will exist when the state actor is substantially limited in his discretion by objective criteria. That is, "[i]f the decisionmaker is not required to base its decision on objective and defined criteria, but instead can deny the requested relief for any constitutionally permissible reason or for no reason at all, the State has not created a constitutionally protected interest." Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). On the other hand, if the state statute or order creating the benefit uses "explicitly mandatory language, in connection with the establishment of specified substantive predicates to limit discretion, [then it] forces a conclusion that the state has created a [constitutionally protected] interest." Ky. Dept't of Corr. v. Thompson, 490 U.S. 454, 463, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). In this way, the Castle Rock court examined the language of the TRO and the state statute supporting the order, and found the language sufficiently mandatory to create a constitutionally protected property interest. 366 F.3d at 1102.
Accordingly, it is appropriate for the Court to consider the language of the restraining order and Louisiana statutory law governing its enforcement to determine if the same conclusion as in Castle Rock is warranted here. The court in Castle Rock reasoned that the mandatory language in the restraining order and state statute required that law enforcement officials arrest a person when they had probable cause to believe there had been a violation of the order. Castle Rock, 366 F.3d at 1103-04. The Colorado restraining order said that law enforcement officials "shall use every reasonable means to enforce this restraining order." Id. Furthermore, it said that a police officer:
" shall arrest, or, if an arrest would be impractical under the circumstances, seek a warrant for the arrest of the restrained person when [the officer has] information that the restrained person has violated or attempted to violate any provision of this order and the restrained person has been properly served with a copy of this order or has received actual notice of the existence of the order." [emphasis in the original]. Id. The Colorado statute has language similar to that in the restraining order. The statute also says that a "police officer shall use every reasonable means to enforce a restraining order," and that an officer "shall arrest" or "seek a warrant for the arrest of a restrained person when the peace officer has information amounting to the probable cause that" the order has been violated. Id.
The temporary restraining order in this case also has mandatory language that says, "This order shall be enforced by all law enforcement officers and courts of the state of Louisiana." However, it also has permissive language that says, "Pursuant to La.R.S. 14:79, a person who violates this order, if issued under La.R.S. 46:2131, et seq. or La.Ch.C. Art. 1564, et seq., may be arrested, jailed, and prosecuted." ( See Rec.Doc.55, Exhibit 18) (emphasis added). Similarly, the Louisiana statutes governing violations of restraining has both mandatory and permissive language. La.R.S. 14:79(E) states, "Law enforcement officers shall use every reasonable means, including but not limited to immediate arrest of the violator, to enforce a preliminary or permanent injunction or protective order . . . or to enforce a temporary restraining order or ex parte protective order." (emphasis added). On the other hand, La.R.S. 46:2137 says, "Upon violation of a temporary restraining order, a protective order, or a court-approved consent agreement, the court may hold the defendant in contempt of court and punish the defendant by imprisonment in the parish jail." (emphasis added).
By amendment in 1994, the content of subsection C was transferred into subsection E. This may account for plaintiff's incorrect reference to 14:79(c) in the Complaint.
The significant distinction between the Colorado restraining order and statute and the Louisiana restraining order and statute is that a Louisiana police officer's discretion is notably broader. Even when there is probable cause that the restrained person is in violation of the order, Louisiana police officers are not required to arrest the person. In Colorado, "if the officer has probable cause to believe the terms of the court order are being violated, the officer is required to arrest or to seek a warrant to arrest the offending party." Castle Rock, 366 F.3d at 1106.
The determination of what is the reasonable course of action is not based on objective predicates, but rather, is left to the discretion of the Louisiana police officer. Although "shall" is a mandatory term, "it simply mandates that police officers use every reasonable means to enforce [the restraining order]. While the statute authorizes arrest of the violator, it does not mandate arrest unless arrest is required to enforce the statute." Id. Indeed, "the word 'may' is not mandatory, but rather implies that a peace officer's power to arrest without a warrant is discretionary." Ardoin v. City of Mamou, 685 So.2d 294,299 (La.App. 3 Cir. 1996).
Because the language of the restraining order and Louisiana enforcement statutes do not have language that does not have specific substantive requisites intended to limit the decisionmaker's discretion, the Court finds that there is no property interest protected by the Due Process Clause of the Fourteenth Amendment. Therefore, the plaintiff's procedural due process claim against the Town of Franklinton is hereby dismissed.
It should be noted that the Castle Rock court dismissed the claims against the individual officers on the basis of qualified immunity because there was no clearly established right that a restraining order was a property interest for the purposes of procedural due process. See Castle Rock, 366 F.3d at 1117. The court found that there was only a Monell claim against the municipality, which required the plaintiff to show that the municipality had a custom or policy of failing to appropriately respond to restraining orders. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611. Thus, the Court considered the due process claim only as to the Town of Franklinton.
C. Failure to Train
Plaintiffs' only remaining federal claim is a failure to train claim against the Town of Franklinton. In order to establish a failure to train claim, plaintiff must show first that there was a constitutional violation that would give rise to governmental liability. Only then, can there be a showing that municipality is liable for the constitutional violation. Collins v. City of Hearker Heights, Texas, 503 U.S. 115, 123, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992).
Here, there are no sustainable constitutional violations as both the equal protection and procedural due process claims are herein dismissed. Therefore, the Court also dismisses plaintiffs' failure to train claim.
The court entertained this state claim through its supplemental jurisdiction powers pursuant to 28 U.S.C. § 1367. With the dismissal of all federal claims which the Court had original jurisdiction, the Court has discretion to exercise jurisdiction over the remaining state claim. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Having presided over this matter for more than two years, having studied the pleadings, memoranda, and relevant law, and having considered the facts, the judicial economy, fairness to litigants, and comity with state courts, this Court shall exercise supplemental subject matter jurisdiction pursuant to 28 U.S.C. § 1367 and address the merits of plaintiff's state law claims. See Newport Ltd. v. Sears, Roebuck Co., 941 F.2d 302, 307 (5th Cir. 1991).
The final question is whether defendants were negligent in failing to arrest and/or failing to enforce a temporary restraining order causing Felicia Fox's death. The Court must first address the threshold matter as to whether plaintiffs have sufficiently alleged this cause of action in their Complaint. The Court finds that they have.
As noted previously, "[t]he notice pleading requirements of Federal Rule of Civil Procedure 8 and case law do not require an inordinate amount of detail or precision. St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 434 (5th Cir. 2000). "The function of a complaint is to give the defendant fair notice of the plaintiff's claim and the grounds upon which the plaintiff relies." Id. The test is whether "within the universe of theoretically provable facts, there exists a set which can support a cause of action under this complaint indulgently read." Covington v. Cole, 528 F.2d 1365, 1370 (5th Cir. 1976).
Plaintiffs Complaint states:
The actions of the Town of Franklinton, the Franklinton Police Department, and the named law enforcement officers, also fail to fulfill the affirmative obligations set forth under Louisiana Revised Statute 14:79(c) which provides that such officers shall use every reasonable means, including arrest, to enforce protective orders." ( See Rec.Doc. 1, Part XIX).
It is clear that plaintiffs are asserting causes of action against all defendants for a breach of duty that arises out Louisiana statutory law that provides for the enforcement of protective orders. Despite the fact that relevant statutes were not invoked and the order was a temporary restraining order (not a protective order), the Court finds this language sufficient to imply a negligence action arising out of a violation of Louisiana statutory law.
The statutes that are relevant to this controversy are La.R.S. 14:79(E), 46:2135, and 46:2137.
See Footnote 4 (above).
In this way, the question before the Court is whether plaintiffs have proffered enough evidence to create a genuine issue of material fact as to whether defendants were negligent in failing to arrest Toomer and/or failing to enforce the restraining order causing the death of Felicia Fox.
Louisiana courts employ a duty-risk analysis to determine whether liability exists under the facts of a particular case. LeJeune v. Union Pacific Railroad, 712 So.2d 491, 494 (La. 1998). Under this analysis, a plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. Id. Under the duty-risk analysis, all four inquiries must be affirmatively answered for plaintiff to recover. The question of whether a legal duty exists is a question of law. Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 (La. 1984).
Thus, the issue is whether the police department or individual policemen owed a duty to Ms. Fox to enforce the temporary restraining order or otherwise prevent Toomer from killing her. In general, the police do not have a duty to arrest that is owed to specific individuals. Rather, they owe this duty to the public at large. Moore v. Esponge, 651 So.2d 962, 966 (La.App. 3 Cir. 1995), writ denied, 654 So.2d 696 (La. 1995). However, this duty to the public at large may focus on an individual when there exists a special relationship between the officer and individual. Such a special duty will arise through closeness or proximity in time. Kendrick v. City of Lake Charles, 500 So.2d 866 (La.App. 1 Cir. 1986). It is appropriate to consider the totality of the circumstances to determine the existence of a duty and the scope of liability. Fowler v. Roberts, 556 So.2d 1 (La. 1989).
Here, the Court must ask two questions: (1) whether the temporary restraining order and the Louisiana statutes enforcing the order create a special duty owed to those who are protected by the restraining order; (2) whether the facts and circumstances of the case create a special duty imposed upon the Franklinton Police for the benefit of Felicia Fox.
The Louisiana Third Circuit Court of Appeal has addressed these very two questions in Ardoin v. City of Mamou, 685 so.2d 294 (La.App. 3 Cir. 1996). In that case, the court found that a domestic abuse restraining order coupled with the Louisiana enforcement statutes do not create a special duty owed to the person who obtained the order. The court reasoned that arrest was not mandated by the statute because such a determination is left to the discretion of the responding officers. Id. at 299. Secondly, the court found that "no special duty existed by virtue of the closeness and proximity in time between the officer's contact with [the victim], and his subsequent shooting of [her]." Id. The court relied upon the fact that the wife did not request the husband's arrest, and the police could not have known from the husband's behavior that he return and shoot her. Id.
Using the Louisiana Third Circuit's analysis of the restraining order and enforcement statutes, it is clear that it is within an officer's discretion to arrest or not arrest a person in violation of a restraining order depending on the circumstances. Therefore, the Court finds that the temporary restraining order and enforcement statutes do not impose a duty to arrest those in violation of the order.
On the other hand, the facts and circumstances of a particular case might impose a duty upon an officer to arrest a person in violation of a temporary restraining order when it would be unreasonable otherwise. The court in Ardoin suggested that because the wife did not request arrest and because the police could not have known from the husband's behavior he would later shoot her, the policemen had no special duty to arrest.
However, the circumstances of this case do not warrant such a conclusion. In the Ardoin case, the facts do not suggest that violence was the predicate for obtaining a restraining order. Thus, it is logical to conclude that the responding police officers could not have known that violence was about to ensue. Here, there was violent behavior including the alleged use of a deadly weapon. Toomer was arrested for these acts, and so the police were certainly on notice that violence was possible, if not imminent. In fact, it is alleged that Sergeant Holmes was the arresting officer on May 23, 2002. He was also one of the responding officers after the temporary restraining order was issued. This officer could have known Toomer would not abide by an instruction to move along, and he could have known violence was about to ensue. The circumstances of this case indeed suggest that the police had a special duty to arrest or otherwise properly enforce the restraining order because of the previous violence. Despite the fact that there were previous violent incidents and there was a temporary restraining order in effect, the police arguably failed to arrest Toomer when he attempted to break-in Fox's home. The question for the factfinder is whether the police had reason to believe that Toomer would commit some act of violence against Fox. Therefore, the Court denies summary judgment.
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment ( See Rec.Doc.46) filed by defendants, Town of Franklinton, Franklinton Police Department, Police Chief Lynn Armand, Sergeant James Holmes, and Detective William Stogner, is hereby GRANTED with respect to the equal protection claim, the procedural due process claim, and the failure to train claim.
IT IS FURTHER ORDERED that summary judgment as to the remaining state law claim is DENIED and the Court hereby exercises its discretion to hear the state law claim under 28 U.S.C. § 1367.