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Date: 09-24-2007
Case Number: 04-1157/2495
Judge: Fuentes
Court: United States Court of Appeals for the Third Circuit on appeal from the Eastern District of Pennsylvania (Philadelphia County)
Plaintiff's Attorney:
Ralph J. Kelly of McShea & Tecce, Philadelphia, Pennsylvania
Defendant's Attorney:
Craig R. Gottlieb, City of Philadelphia Law Department, Philadelphia, Pennsylvania
Description:
In January 1999, George Burella, a ten-year veteran of the Philadelphia Police Department, shot and seriously injured his wife, Jill Burella, and then shot and killed himself.1 George Burella had emotionally and physically abused Jill Burella for years prior to the shooting. Although she reported numerous incidents of abuse to the police over the years, obtained several restraining orders just days before the shooting, and told police that her husband continued threatening her despite the orders, police failed to arrest him. This appeal concerns whether the police officers had In January 1999, George Burella, a ten-year veteran of the Philadelphia Police Department, shot and seriously injured his wife, Jill Burella, and then shot and killed himself.1 George Burella had emotionally and physically abused Jill Burella for years prior to the shooting. Although she reported numerous incidents of abuse to the police over the years, obtained several restraining orders just days before the shooting, and told police that her husband continued threatening her despite the orders, police failed to arrest him. This appeal concerns whether the police officers had a constitutional obligation to protect Jill Burella from her husband's abuse. Despite our grave concerns about the Philadelphia Police Department's alleged conduct in this case, we hold that the officers did not have such an obligation. Accordingly, we will reverse the District Court's denial of qualified immunity and remand for further proceedings consistent with this opinion.
I. Background
We set forth in some detail the long and protracted history of physical and emotional abuse in this case because it is central to Jill Burella's claim that Philadelphia police officers knew about the abuse, but nevertheless failed to act, thereby violating her due process and equal protection rights.
The abuse began around February 1996, when George Burella was convicted of disorderly conduct for stalking his wife at her workplace and assaulting her male co-worker who he suspected was having an affair with her. One month later, in the face of marital troubles and a severe gambling problem, George Burella attempted suicide. He survived and was admitted to a psychiatric hospital where he was diagnosed with depression.
After her husband was released from the hospital, Jill Burella contacted the Philadelphia Police Department's Employee Assistance Program ("EAP"), which is designed to assist officers in obtaining help with personal problems. The EAP notified the City Medical Department, which placed George Burella on restricted duty and referred him to City doctors for psychological treatment. The doctors eventually cleared him to return to full active duty in August 1996, provided he be evaluated every four months for a period of one year. Jill Burella alleges that the City did not follow up.
George Burella's violence towards his wife continued over the next several years and, in early June 1998, she contacted the Philadelphia Police Department's Internal Affairs Division to report the abuse. Internal Affairs referred the matter to the EAP, which assigned George Burella a peer counselor.
Later that month, on June 26, 1998, George Burella assaulted his wife and another man at a local bar. Witnesses called 911, but George Burella left the bar before police officers arrived. When he got home, he phoned his wife and threatened to shoot their son Nicholas if she did not immediately return to the house. After calling 911, Jill Burella rushed home, where her husband, who was armed with a gun, threatened to shoot her. Before the matter worsened, police officers arrived. George Burella initially refused the officers' order to surrender, but did so after the officer in charge agreed to report the incident as a domestic disturbance, rather than a more serious offense. Officer Robert Reamer, who is named as a defendant in this lawsuit, was one of the officers who arrived at the scene.
After the police officers left, George Burella began beating his wife on their front lawn. Her parents arrived and took her to their house, but George Burella followed them there. Once at her parents' house, she tried to call 911, but her husband wrestled the phone from her and told the operator that he was a police officer and that everything was under control. As a result, the operator did not instruct police to respond to the situation. Three days later, Jill Burella contacted the EAP to report the incident, but because the EAP failed to notify Internal Affairs, the incident was never investigated.
In July 1998, George Burella called his wife at work in Upper Southampton Township and threatened to kill her. After Upper Southampton police officers arrived at her workplace, she received several more threatening phone calls from her husband. The officers called Captain Charles Bloom, George Burella's commanding officer, and a defendant in this lawsuit, to inform him about the incident.
Captain Bloom became directly involved in the situation on August 13, 1998, when Northampton police officers arrested George Burella for assaulting Jill Burella in Bucks County. The officers released George Burella into the custody of Captain Bloom, who escorted him home. Three days later, on August 16, George Burella called his wife while she was visiting his parents with the children and again threatened to kill her. When he went to his parents' house, Northampton police officers responding to an emergency call escorted him to his car, unloaded his firearm, and placed it in the trunk of the car. Shortly thereafter, officers found him driving in the vicinity of the house with his gun re-loaded and placed on the backseat of his car. Officers took him to a local hospital, but he was released shortly thereafter.3 After being notified of the incident, Captain Bloom ordered George Burella to submit to a psychiatric evaluation.
Later that month, George Burella admitted himself to a psychiatric hospital, but left after four days of treatment. Several days later, City psychologists examined him and concluded that he should be monitored for the next two years. After one follow-up appointment with City doctors in September 1998, he did not return for treatment.
On December 24, 1998, George Burella again assaulted his wife, this time while she was visiting a friend. When Philadelphia police officers arrived, they allowed him to leave with the couple's youngest daughter, and then took Jill Burella and her two other children home, where her husband resumed beating her.
Over the course of the next few weeks, Jill Burella obtained the three protection from abuse orders relevant to this lawsuit. On January 2, 1999, she obtained an emergency ex parte protection from abuse order from the Philadelphia Court of Common Pleas that prohibited her husband from "abusing, harassing, stalking and/or threatening" her, and from "living at, entering, attempting to enter or visiting" the couple's home. The order further provided that officers "shall . . . arrest the defendant if he/she fails to comply with this Order." (App. at 110-11.) The next day, Officer Reamer served the order on George Burella, who, according to Jill Burella, immediately violated it by shouting at and threatening her. Despite witnessing the alleged violation, Officer Reamer permitted George Burella to enter the house.
The next day, Jill Burella obtained another temporary protection from abuse order, which essentially repeated the terms set forth in the January 2 order. In addition, the court awarded her temporary custody of the couple's three children, prohibited George Burella from having "any contact" with her, and ordered him to relinquish all guns other than his service weapon, which he was required to turn over to his commanding officer at the end of every shift. The order also stated that "[t]his Order shall be enforced by any law enforcement agency in a county where a violation of this Order occurs." (App. at 121-22.)
Later that day, Jill Burella called 911 after she received threatening phone calls from her husband. After officers arrived, and while in their presence, she received several more calls from her husband. The officers told her they could not do anything unless her husband was physically present.4 When Jill Burella called the police the next day, again they told her that nothing could be done unless her husband was physically present at her house.
On January 8, 1999, Jill Burella obtained a final order of protection.5 Four days later, following an appointment with a psychiatrist at the City Medical Department, George Burella went to the house he formerly shared with his wife and shot her in the chest. He then immediately shot and killed himself. Although she suffered serious injuries, Jill Burella survived the shooting.
In February 2000, Jill Burella filed a complaint in Pennsylvania state court against Officer Reamer, Captain Bloom, and Captain Bloom's successor, Francis Gramlich, along with the City of Philadelphia and Dr. Warren Zalut, the City psychiatrist who saw George Burella on the day of the shooting. After the case was removed to federal district court, she filed an eight-count amended complaint asserting various federal constitutional and state law claims. The officers and the City moved for summary judgment on all counts asserted against them.6 This appeal concerns solely the District Court's summary judgment ruling that the officers are not entitled to qualified immunity with respect to Jill Burella's due process (Count I) and equal protection (Count IV) claims.
* * *
"Section 1983, enacted as part of the Civil Rights Act of 1871, establishes ‘a federal remedy against a person who, acting under color of state law, deprives another of constitutional rights.'"8 McCurdy v. Dodd, 352 F.3d 820, 825 (3d Cir. 2003) (quoting City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 258 (1981)). In order to establish a prima facie case under § 1983, a plaintiff must demonstrate that: "(1) a person deprived [her] of a federal right; and (2) the person who deprived [her] of that right acted under state or territorial law." Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). The parties agree that the officers are state actors for purposes of this § 1983 lawsuit, but dispute whether Jill Burella was deprived of a federal constitutional right.
Even when a federal right is implicated in a § 1983 action, a state actor alleged to have violated that right may nevertheless be entitled to qualified immunity from suit. "Qualified immunity shields state officials from suit when their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Yarris, 465 F.3d at 140 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus, in order to decide whether a defendant is entitled to qualified immunity, a court must first determine if, assuming the facts alleged in the complaint are true, defendant's conduct violated a constitutional or statutory right and, if so, whether the right allegedly violated was "clearly established" at the time of the violation. Id. If the court concludes that the defendant's conduct violated a clearly established right, it must deny the defendant the protection afforded by qualified immunity.9 Id.
IV. Analysis
The officers contend that Jill Burella did not have a constitutional right to police protection from her husband's abuse and, even if she did, that such a right was not clearly established at the time of the alleged violation. Therefore, the officers argue, the District Court erred when it denied them qualified immunity with respect to her due process claim.10 In addition, they argue that the District Court erred in ruling that she had a cognizable federal equal protection claim sufficient to overcome their qualified immunity. We address the District Court's due process and equal protection rulings in turn.
A. Due Process
Although the District Court ruled that Jill Burella did not have a viable substantive due process claim, it held that she had a procedural due process right to police protection based on the Pennsylvania Protection from Abuse Act and the protection from abuse orders issued by the Pennsylvania Court of Common Pleas. For the reasons that follow, we do not agree that Jill Burella had a constitutional right to police protection.
1) Substantive Due Process
The District Court correctly determined that DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), forecloses Jill Burella from asserting a substantive due process claim. The victim in DeShaney, Joshua DeShaney, was brutally and repeatedly beaten by his father. County social workers were aware of the abuse, took some steps to intervene, but decided not to permanently remove Joshua from his father's custody. After suffering permanent brain damage at the age of four as a result of the abuse, Joshua and his mother, as guardian ad litem, brought a § 1983 action alleging that county social workers "deprived Joshua of his liberty without due process of law . . . by failing to intervene to protect him against a risk of violence at his father's hands of which they knew or should have known." Id. at 193.
The Supreme Court rejected plaintiffs' substantive due process argument, explaining that "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." Rather, the Court observed, "[t]he Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security." Id. at 195. Therefore, the Court reasoned, "[i]f the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them." Id. at 196-97.
The Supreme Court also rejected plaintiffs' argument that once the State took steps to intervene in the abuse, it was obligated to do so in a reasonably competent manner. The Court explained that "[t]he affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." Id. at 200. In other words:
it is the State's affirmative act of restraining the individual's freedom to act on his own behalf - through incarceration, institutionalization, or other similar restraint of personal liberty - which is the ‘deprivation of liberty' triggering the protections of the Due Process Clause, not its failure to protect his liberty interests against harms inflicted by other means.
Id.
Recognizing that Jill Burella does not have a viable substantive due process claim under DeShaney, the District Court turned to whether she had a procedural due process right to police protection.
2) Procedural Due Process
The District Court held that Jill Burella had a procedural due process claim under Board of Regents v. Roth, 408 U.S. 564 (1972). In Roth, plaintiff was a non-tenured professor at a state university who was not rehired after his term of employment expired. Plaintiff argued that "the failure of University officials to give him notice of any reason for nonretention and an opportunity for a hearing violated his right to procedural due process of law." Id. at 569.
In rejecting plaintiff's argument, the Supreme Court stated that:
The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite.
Id. at 569-70 (footnote omitted). With respect to how such interests are created, the Court explained: "Property interests are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. at 577.
Thus, the Court observed, it had previously recognized the existence of a constitutionally protected property interest in cases involving, for example, "a person receiving welfare benefits under statutory and administrative standards defining eligibility for them," id. at 576 (citing Goldberg v. Kelly, 397 U.S. 254 (1970); Flemming v. Nestor, 363 U.S. 603 (1960)); "a public college professor dismissed from an office held under tenure provisions," id. (citing Slochower v. Bd. of Higher Educ., 350 U.S. 551 (1956)); and "college professors and staff members dismissed during the terms of their contracts," id. at 577 (citing Wieman v. Updegraff, 344 U.S. 183 (1952)).
The Supreme Court concluded that the plaintiff in Roth could not point to any source that would support his claim that he had a property interest in continued employment:
[T]he terms of the respondent's appointment secured absolutely no interest in re-employment for the next year. They supported absolutely no possible claim of entitlement to re-employment. Nor, significantly, was there any state statute or University rule or policy that secured his interest in re-employment or that created any legitimate claim to it. In these circumstances, the respondent surely had an abstract concern in being rehired, but he did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment.
Id. at 578 (footnote omitted).
Recognizing the absence of any Third Circuit procedural due process cases squarely applicable to the facts presented in this case, the District Court relied principally on Coffman v. Wilson Police Department, 739 F. Supp. 257 (E.D. Pa. 1990), another tragic domestic violence case in which the police failed to enforce a protection from abuse order obtained by the victim pursuant to the Pennsylvania Protection from Abuse Act. The district court held there that the victim had a constitutionally protected entitlement to police protection because, in the court's view, the order required officers to arrest the abuser:
An order of court, served upon the Department, that states that the Department shall enforce the order is unambiguous. The word "shall" is mandatory, not precatory, and its use in a simple declarative sentence brooks no contrary interpretation. Although, in the context of Roth, property interests generally arise from sources other than judicial orders, it is in no way remarkable that an order could create such an entitlement.
Id. at 264.
In this case, the District Court found the reasoning in Coffman persuasive:
[T]he Philadelphia Court of Common Pleas issued protection from abuse orders pursuant to the [Pennsylvania Protection from Abuse Act] on behalf of Jill Burella. The orders, issued on January 2, 4, and 8, 1999, were each served on Officer George Burella by the Philadelphia Police Department. According to the reasoning set forth in Coffman under very similar facts, the [protection from abuse] orders alone may be sufficient to afford [Jill Burella] an entitlement to police protection from her husband.
Burella, 2003 WL 23469295, at *6.
In addition, in the District Court's view, changes to the Pennsylvania Protection from Abuse Act enacted in 1994 further supported Jill Burella's procedural due process claim. Where previously the Act stated that "[a]n arrest for violation of an order issued pursuant to this chapter may be without warrant upon probable cause whether or not the violation is committed in the presence of the police officer," 23 Pa. Cons. Stat. Ann. § 6113 (1990), in 1994, the Pennsylvania Legislature amended the Act to provide that "[a] police officer or sheriff shall arrest a defendant for violating an order issued under this chapter." 23 Pa. Cons. Stat. Ann. § 6113(a) (2003) (emphasis added). Thus, in the District Court's view, "[u]nder the new language, once the order is violated, the statute is clear; the police ‘shall arrest.'" Burella, 2003 WL 23469295, at *7. Therefore, the District Court reasoned, the orders of protection, coupled with the Pennsylvania statute, left officers without discretion not to arrest George Burella for a violation and, thereby, conferred on Jill Burella an entitlement to police enforcement of the orders.
After the parties briefed this appeal, the Supreme Court addressed a similar procedural due process claim in Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).11 In Castle Rock, the plaintiff obtained an order of protection that commanded her husband "not to molest or disturb the peace of [plaintiff] or of any child and to remain at least 100 yards from the family home at all times." Id. at 751 (internal quotation marks omitted). Plaintiff's husband abducted the couple's three young daughters, and despite plaintiff's repeated calls for help, police failed to respond. The husband ultimately murdered the children and was then killed in a shoot-out with police. Plaintiff sued the City of Castle Rock, along with the officers who handled her calls, for failing to enforce the order of protection.
Reversing an en banc decision of the United States Court of Appeals for the Tenth Circuit, the Supreme Court, in a 7-2 decision, rejected the argument that the victim had a constitutionally protected property interest in police enforcement of the order of protection.12 The Court began its analysis by explaining that DeShaney left open the question whether a victim of a private act of violence may, under certain circumstances, have a constitutionally cognizable property interest in police protection. Id. at 755. Turning to the victim's procedural due process claim, the Supreme Court first looked at the terms of the order of protection. A preprinted warning on the back of the order provided:
A KNOWING VIOLATION OF A RESTRAINING ORDER IS A CRIME . . . A VIOLATION WILL ALSO CONSTITUTE CONTEMPT OF COURT. YOU MAY BE ARRESTED WITHOUT NOTICE IF A LAW ENFORCEMENT OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT YOU HAVE KNOWINGLY VIOLATED THIS ORDER.
Id. at 752. Additional preprinted text on the back of the order set forth a "NOTICE TO LAW ENFORCEMENT OFFICIALS" which stated:
YOU SHALL USE EVERY REASONABLE MEANS TO ENFORCE THIS RESTRAINING ORDER. YOU SHALL ARREST, OR, IF AN ARREST WOULD BE IMPRACTICAL UNDER THE CIRCUMSTANCES, SEEK A WARRANT FOR THE ARREST OF THE RESTRAINED PERSON WHEN YOU HAVE INFORMATION AMOUNTING TO PROBABLE CAUSE THAT THE RESTRAINED PERSON HAS VIOLATED OR ATTEMPTED TO VIOLATE ANY PROVISION OF THIS ORDER . . . .
Id. The Court then observed that the Notice "effectively restated the [Colorado] statutory provision describing ‘peace officer's duties' related to the crime of violation of a restraining order." Id. at 758. That provision stated, in relevant part:
(a) . . . A peace officer shall use every reasonable
means to enforce a restraining order.
(b) A peace officer shall arrest, or, if an arrest would
be impractical under the circumstances, seek a
warrant for the arrest of a restrained person when
the peace officer has information amounting to
probable cause . . . .
(c) . . . A peace officer shall enforce a valid
restraining order whether or not there is a record of
the restraining order in the registry.
Id. at 758-59 (emphasis added by Castle Rock) (quoting Colo. Rev.
Stat. § 18-6-803.5(3) (1999)). The Supreme Court rejected the
Court of Appeals' conclusion that
this statutory provision - especially taken in conjunction with a statement from its legislative history, and with another statute restricting criminal and civil liability for officers making arrests - established the Colorado Legislature's clear intent to alter the fact that the police were not enforcing domestic abuse restraining orders, and thus its intent that the recipient of a domestic abuse restraining order have an entitlement to its enforcement.
Id. 759-60 (footnotes and internal quotation marks omitted).
Focusing on the "deep-rooted nature of law-enforcement discretion, even in the presence of seemingly mandatory legislative commands," id. at 761, the Supreme Court stated that it did "not believe that these provisions of Colorado law truly made enforcement of restraining orders mandatory." Id. at 760. Rather, the Court observed, "[a] well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes." Id. Given this tradition, "a true mandate of police action would require some stronger indication from the Colorado Legislature than ‘shall use every reasonable means to enforce a restraining order' (or even ‘shall arrest . . . or . . . seek a warrant')." Id. (emphasis added). As the Court explained:
It is hard to imagine that a Colorado police officer would not have some discretion to determine that - despite probable cause to believe a restraining order has been violated - the circumstances of the violation or the competing duties of that officer or his agency counsel decisively against enforcement in a particular instance.
Id. at 761. The Court stated, for example, that a police officer might properly choose "not to enforce a restraining order when the officer deems a technical violation too immaterial to justify arrest." Id. at 762 n.8 (internal quotation marks omitted).
Moreover, the Court noted, even if the statute could be construed as having made enforcement of the restraining order "mandatory," "that would not necessarily mean that state law gave respondent an entitlement to enforcement of the mandate." Id. at 764-65. Rather, "[m]aking the actions of government employees obligatory can serve various legitimate ends other than the conferral of a benefit on a specific class of people." Id. at 765. The Court observed, for example, that criminal statutes often serve public rather than private ends, as reflected by the discretion afforded a Colorado district attorney to pursue criminal prosecution under the statute even if the victim withdraws his or her complaint. Id. Moreover, "[t]he protected person's express power to ‘initiate' civil contempt proceedings contrasts tellingly with the mere ability to ‘request' initiation of criminal contempt proceedings - and even more dramatically with the complete silence about any power to ‘request' (much less demand) that an arrest be made." Id. at 766.
Finally, the Court pointed out that even if it were to conclude that the Colorado statute created an entitlement to enforcement of a restraining order, "it is by no means clear that [such an entitlement] could constitute a ‘property' interest for purposes of the Due Process Clause." Id. That is, "[s]uch a right would not, of course, resemble any traditional conception of property."13 Id.
Thus, the Court held, "[i]n light of today's decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process clause, neither in its procedural nor its ‘substantive' manifestations." Id. at 768.
Jill Burella argues that the Supreme Court's decision in Castle Rock does not prevent her from succeeding on her procedural due process claim because the Pennsylvania Protection from Abuse Act states that police "shall arrest a defendant for violating an order." See 23 Pa. Cons. Stat. Ann. § 6113(a) (emphasis added). It does not, as the Colorado statute provides, state that police "shall use every reasonable means to enforce" the restraining order. See Colo. Rev. Stat § 18-6-803.5(3) (emphasis added). Therefore, she contends, under the Pennsylvania statute, police officers do not have discretion not to enforce a protection from abuse order.
As discussed above, however, the Court in Castle Rock unambiguously stated that absent a "clear indication" of legislative intent, a statute's mandatory arrest language should not be read to strip law enforcement of the discretion they have traditionally had in deciding whether to make an arrest. 545 U.S. at 761. Although the Supreme Court did not specify what language would suffice to strip the police of such discretion, it is clear after Castle Rock that the phrase "shall arrest" is insufficient. As previously noted, the Supreme Court explicitly stated that "a true mandate of police action would require some stronger indication from the Colorado Legislature than . . . ‘shall arrest.'" Id.
In addition, we note that Jill Burella's argument fails to address the Supreme Court's observation in Castle Rock that even if the Colorado domestic violence statute mandated an arrest, it would not necessarily mean the victim would have an "entitlement" to an arrest. That is, although the Pennsylvania statute allows a victim of domestic violence to "file a private criminal complaint against a defendant, alleging indirect criminal contempt" for violation of a protective order, 23 Pa. Cons. Stat. § 6113.1(a), or "petition for civil contempt" against the violator, 23 Pa. Cons. Stat. § 6114.1(a), like the Colorado statute, it is silent as to whether a victim can request, much less demand, an arrest.14 See 23 Pa. Cons. Stat. Ann. § 6113:1(a). In fact, "[w]hen an individual files a private criminal complaint [under § 6113.1], the district attorney has the discretion to refrain from proceeding for policy reasons." Starr v. Price, 385 F. Supp. 2d 502, 511 (M.D. Pa. 2005); Pa. R. Crim. P. 506.
Moreover, Jill Burella's attempt to limit the Supreme Court's holding in Castle Rock to situations in which the abuser is not present at the time of the alleged violation is unconvincing. She is correct that the Supreme Court stated that "[t]he practical necessity for [police] discretion is particularly apparent in a case such as this one, where the suspected violator is not actually present and his whereabouts are unknown." Id. at 762. But, in our view, the Court's holding in Castle Rock did not depend on the absence of the perpetrator. Indeed, we agree with the officers that the perpetrator's absence "was only additional fodder for discretion, not a necessary ingredient." (See Appellants' Suppl. Letter Br. at 3.)
Finally, we cannot ignore that despite framing the issue as one of procedural due process, what Jill Burella appears to seek is a substantive due process remedy: that is, the right to an arrest itself, and not the pre-deprivation notice and hearing that are the hallmarks of a procedural due process claim.
In short, whether framed as a substantive due process right under DeShaney, or a procedural due process right under Roth, Jill Burella does not have a cognizable claim that the officers' failure to enforce the orders of protection violated her due process rights.15 Therefore, we need not determine whether her entitlement to police protection was "clearly established" at the time of the alleged violation before concluding that the officers are entitled to qualified immunity.
* * *
Outcome: The facts Jill Burella alleges, if true, reveal a terrible deficiency on the part of the Philadelphia Police Department in responding to her complaints of domestic abuse. Binding precedent nevertheless compels our conclusion that the officers’ failure to arrest her husband, or to handle her complaints more competently, did not violate her constitutional right to due process or equal protection of the law. Accordingly, we hold that the officers are entitled to qualified immunity on her constitutional claims.
We will reverse and remand to the District Court for further proceedings consistent with this opinion.
Plaintiff's Experts: Unknown
Defendant's Experts: Unknown
Comments: None