Burella v. Philadelphia

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

9-13-2007

Burella v. Philadelphia

Precedential or Non-Precedential: Precedential

Docket No. 04-1157

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 04-1157/2495

JILL BURELLA, individually and as parent and guardian of

BETH ANN BURELLA, DANIELLE BURELLA, and

NICHOLAS BURELLA

v.

CITY OF PHILADELPHIA; ROBERT REAMER, individually

and as a police officer of the City of Philadelphia; WARREN

ZALUT; CHARLES BLOOM, individually and as a police

officer of the City of Philadelphia; FRANCIS GRAMLICH,

individually and as a police officer of the City of Philadelphia;

JOHN DOE I, individually and as a police officer of the City of

Philadelphia; JOHN DOE II, individually and as a police officer

of the City of Philadelphia; JOHN DOE III, individually and as a

police officer of the City of Philadelphia; JOHN DOE IV,

individually and as a police officer of the City of Philadelphia

Robert Reamer, Charles Bloom, Francis Gramlich,

Appellants.

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 00-cv-00884)

District Judge: Honorable Herbert J. Hutton

Argued November 2, 2006

Before: AMBRO, FUENTES and SMITH, Circuit Judges

(Filed: September 13, 2007 )

Ralph J. Kelly (Argued)

McShea & Tecce

Bell Atlantic Tower

1717 Arch Street, 28th floor

Philadelphia, PA 19103

Counsel for Appellees

Craig R. Gottlieb (Argued)

City of Philadelphia Law Department

1515 Arch Street

One Parkway

Philadelphia, PA 19102

Counsel for Appellants

OPINION OF THE COURT

FUENTES, Circuit Judge.

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

1

At the time of the shooting, Jill and George Burella had three

young children—an eleven-year-old daughter, Bethann, and six-

year-old twins, Nicholas and Danielle. Jill Burella brings this

lawsuit individually and on her children’s behalf.

2

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 2

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

2

“In interlocutory appeals from denials of summary judgment on

the basis of qualified immunity, we must accept the District Court’s

set of facts as given.” Walker v. Horn, 286 F.3d 705, 707 (3d Cir.

2002). The District Court’s opinion is set forth in Burella v. City

of Philadelphia, No. Civ. 00-884, 2003 WL 23469295 (E.D. Pa.

Dec. 17, 2003).

3

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.

4

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

3

The District Court’s opinion states that Jill Burella went with her

father-in-law to obtain an order of protection after she received the

threatening phone calls on August 16, 1998. Although the record

is unclear, it seems that George Burella’s father and half-sister may

have also obtained orders of protection, and that officers served

him with all three orders of protection at the hospital. (See App. at

748-59.)

5

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

4

It is unclear, according to the District Court, whether the officers

knew that there was a protection from abuse order in effect.

5

The District Court noted that the provision in the final order

requiring Officer Burella to relinquish his weapons was crossed

6

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.7

II. Jurisdiction and Standard of Review

The District Court had subject matter jurisdiction over

plaintiff’s federal constitutional claims pursuant to 28 U.S.C. §§

1331 and 1343, and supplemental jurisdiction over her state law

claims pursuant to § 1367(a). Under the collateral order doctrine,

out. Burella, 2003 WL 23469295, at *8 n.6.

6

Count VIII of the amended complaint set forth a negligence claim

against Dr. Zalut, who was not a party to the summary judgment

motion. Burella, 2003 WL 23469295, at *3 n.2.

7

The District Court denied the officers’ motion for

reconsideration. We note that in its summary judgment ruling, the

District Court also allowed Jill Burella to proceed against the

officers on a state equal protection claim and a claim for intentional

infliction of emotional distress. Burella, 2003 WL 23469295, at

*13-14. In addition, the District Court denied the City of

Philadelphia summary judgment on all claims asserted against it.

Id. at *9-12.

7

we have appellate jurisdiction over an interlocutory appeal of a

district court’s order denying qualified immunity to the extent the

denial turns on issues of law. See Yarris v. County of Delaware,

465 F.3d 129, 134 (3d Cir. 2006). We exercise plenary review over

legal issues related to qualified immunity. Id.

III. Legal Framework

“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

8

Section 1983 states:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

. . . subjects, or causes to be subjected, any citizen of

the United States . . . to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress . . . .

42 U.S.C. § 1983 (2003).

8

(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

9

The Supreme Court has explained that the doctrine of qualified

immunity is an attempt to balance “not only the importance of a

damages remedy to protect the rights of citizens, but also the need

to protect officials who are required to exercise their discretion and

the related public interest in encouraging the vigorous exercise of

official authority.” Harlow, 457 U.S. at 807 (citation and internal

quotation marks omitted).

10

The District Court held that Captain Bloom (but not Officer

Reamer or Captain Gramlich) was entitled to qualified immunity

from Jill Burella’s due process claim because Jill Burella did not

allege any facts “to show that Captain Bloom failed to protect [her]

once the first protection from abuse order was issued on January 2,

1999.” Burella, 2003 WL 23469295, at *9. For sake of

convenience, we refer to “the officers” collectively throughout our

discussion, with the understanding that only Officer Reamer and

Captain Gramlich challenge the District Court’s due process

qualified immunity ruling.

9

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.

10

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:

11

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

12

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

13

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

11

In response to this Court’s instructions, the parties submitted

supplemental briefing and further addressed the case at oral

argument.

14

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

12

Although the Tenth Circuit held that plaintiff had a procedural

due process right to police enforcement of the order of protection,

it concluded that the officers were entitled to qualified immunity

because the right was not clearly established at the time of the

alleged violation. Gonzales v. City of Castle Rock, 366 F.3d 1093,

1117-18, rev’d, 545 U.S. 748 (2005). Therefore, even under the

Tenth Circuit’s ruling, plaintiff could only have proceeded against

the City on her procedural due process claim.

15

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

O R A TTEM P T E D T O V IO L A T E A N Y

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 f or of f ic e rs m a king

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

16

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

17

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.

13

“Perhaps most radically,” the Court observed, “the alleged

property interest here arises incidentally, not out of some new

species of government benefit or service, but out of a function that

government actors have always performed—to wit, arresting

people who they have probable cause to believe have committed a

criminal offense.” Id. at 766-67.

18

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

14

We acknowledge that in allowing a domestic violence victim to

initiate criminal contempt proceedings, the Pennsylvania statute

goes further than the Colorado statute, which only allowed a victim

of domestic violence to request that the State initiate such

proceedings.

19

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.

3) State-Created Danger

We also conclude that Jill Burella cannot succeed on her

state-created danger claim because she fails to allege any facts that

would show that the officers affirmatively exercised their authority

in a way that rendered her more vulnerable to her husband’s

abuse.16

15

We note that at least one Pennsylvania district court has

recognized that Coffman, which the District Court relied on in this

case, is no longer good law in light of Castle Rock. See Starr, 385

F. Supp. 2d at 502.

16

Although the District Court did not evaluate Jill Burella’s state-

created danger claim because it had already decided that she

possessed a Roth entitlement to police protection, Burella, 2003

20

We have described the state-created danger doctrine as “a

complement to the DeShaney holding.” Bright v. Westmoreland

County, 443 F.3d 276, 281 (3d Cir. 2006). The doctrine recognizes

that a constitutional violation may result “when state authority is

affirmatively employed in a manner that injures a citizen or renders

him more vulnerable to injury from another source than he or she

would have been in the absence of state intervention.” 17 Id.

WL 23469295, at *7 n.4, we think the record is sufficiently

developed in this case to allow us to address the issue. See In re

Ben Franklin Hotel Assocs., 186 F.3d 301, 306 (3d Cir. 1999)

(“Because the record has been sufficiently developed for us to

resolve this legal issue, we need not remand to the District Court

to consider it in the first instance.”); see also Hudson United Bank

v. Litenda Mortgage Corp., 142 F.3d 151, 159 (3d Cir. 1998)

(“This procedure is generally appropriate when the factual record

is developed and the issues provide purely legal questions, upon

which an appellate court exercises plenary review.”). Moreover,

we note that in her brief on appeal, Jill Burella does not ask that we

remand the issue to the District Court, but rather, thoroughly argues

the merits of her claim. (See Appellant’s Br. at 48-66.)

17

We have held that there are four elements of a state-created

danger claim: (1) “the harm ultimately caused was foreseeable and

fairly direct,” (2) “a state actor acted with a degree of culpability

that shocks the conscience,” (3) “a relationship between the state

and the plaintiff existed such that the plaintiff was a foreseeable

victim of the defendant’s acts, or a member of a discrete class of

persons subjected to the potential harm brought about by the state’s

actions as opposed to a member of the public in general;” and (4)

“a state actor affirmatively used his or her authority in a way that

created a danger to the citizen or that rendered the citizen more

vulnerable to danger than had the state not acted at all.” Bright,

443 F.3d at 281 (emphasis added) (internal quotation marks

omitted). We first recognized a viable state-created danger claim

in Kneipp v. Tedder, 95 F.3d 1199, 1211 (3d Cir. 1996), a case in

which the plaintiff suffered severe injuries after police stopped her

on her way home with her husband while she was in an obvious

state of inebriation, told the husband that he should go home and

that they would take care of plaintiff, and then abandoned plaintiff

21

(internal quotation marks omitted) (emphasis added).

Jill Burella contends that the officers’ “continual refusal to

enforce the court order and follow state law requiring Officer

Burella’s arrest, together with their false direction that ‘there was

nothing they could do,’ as well as overall inadequate intervention

were affirmative acts which together increased the likelihood of

harm.” (Appellee’s Br. at 50.) Her attempt to characterize the

officers’ alleged wrongdoing as an affirmative misuse of authority

is not persuasive. Rather, it is apparent that what she actually

contends is that the officers failed to act at all. We agree with the

officers that this argument is deficient as a matter of law. See Ye

v. United States, 484 F.3d 634, 638 (3d Cir. 2007) (“[B]oth

DeShaney and [Third Circuit] precedents explicitly require[] an

affirmative act, rather than inaction.”).

For example, in Bright, we addressed a claim brought on

behalf of Annette Bright, an eight-year-old girl murdered by a man

who was released on parole for an earlier sex offense involving

Annette’s twelve-year-old sister. The perpetrator repeatedly

violated his parole by attempting to carry on a relationship with the

victim. The girls’ father called the police and was assured that the

perpetrator’s parole would be revoked. Before the parole

revocation hearing, however, the perpetrator murdered Annette in

retaliation against her family for trying to prevent him from seeing

Annette’s sister. 443 F.3d at 278-79.

Annette’s father, suing on her behalf, argued that the police

caused Annette’s death by (1) delaying the revocation of parole;

(2) assuring Annette’s family that they would protect Annette, but

then failing to do so; and (3) not following up on a confrontation

with the perpetrator prior to Annette’s murder, thereby

“embolden[ing] him to commit a crime he otherwise would not

have committed.” Id. at 283. We rejected this argument on

grounds that:

on the side of the road, at which point plaintiff sustained her

injuries.

22

The reality of the situation . . . is that what is alleged

to have created a danger was the failure of the

defendants to utilize their state authority, not their

utilization of it. [Plaintiff] has identified no action of

the defendants that utilized their state authority in a

manner that rendered Annette more vulnerable . . .

than she would otherwise have been.

Id. at 284. As in Bright, Jill Burella does not allege any facts that

would establish that the officers did anything other than fail to act.

That failure, while deeply troubling and unquestionably tragic, does

not give rise to a cognizable state-created danger claim.

B. Equal Protection

Jill Burella asserts federal equal protection claims against

the City (Count III) and the officers (Count IV). The District Court

analyzed both claims together, concluding, first, that a reasonable

jury could find that at the time of the shooting, there was an

unlawful custom among Philadelphia police officers not to enforce

orders of protection; and, second, that because the equal protection

rights of domestic violence victims were clearly established during

the period when Jill Burella reported the abuse to the Philadelphia

Police Department, the officers are not entitled to qualified

immunity. We disagree with the District Court and conclude that

the officers are entitled to qualified immunity as to Jill Burella’s

equal protection claim.

In Hynson v. City of Chester, 864 F.2d 1026 (3d Cir. 1988),

we held that to survive summary judgment, a plaintiff alleging an

equal protection claim based on the unequal treatment of domestic

violence victims

must proffer sufficient evidence that would allow a

reasonable jury to infer that it is the policy or custom

of the police to provide less protection to victims of

domestic violence than to other victims of violence,

that discrimination against women was a motivating

factor, and that the plaintiff was injured by the policy

or custom.

23

Id. at 1031. This, we said, “is the essence of the constitutional

right which the plaintiff[] must show was clearly established at the

time of the alleged violation in order to negate the police officers’

qualified immunity.”18 Id.

In its analysis, the District Court identified three factual

allegations that would support Jill Burella’s claim that the

Philadelphia Police Department had a custom or policy of

providing victims of domestic violence with less protection than

other victims of violence: (1) “police officers were confused as to

their authority under the law to arrest violators of protection

orders;” (2) “officers did not know whether to make an arrest for

a violation of an order or to just advise the complainant of his or

her rights;” and (3) “the City knew of the confusion among its

police officers for some time prior to January 12, 1999, when the

Plaintiff was shot.” 19 Burella, 2003 WL 23469295, at *11.

As to evidence of discriminatory intent, the District Court

observed that Jill Burella relied on (1) the deposition testimony of

18

In her amended complaint, Jill Burella also alleges that the

Philadelphia Police Department’s “response to matters involving

a police officer and/or spouse of a police officer were

discriminatory polic[i]es and/or executed in a[] discriminatory

manner.” (App. at 74.) We note that the District Court did not rule

on the issue of whether the City of Philadelphia or the officers treat

victims of domestic violence who are spouses of police officers

differently than other victims of domestic violence.

19

Although this portion of the District Court’s analysis was set

forth in its discussion of Count II of the amended complaint, which

asserted a due process claim against the City, the District Court

relied on the same analysis to conclude that there was sufficient

evidence of an unlawful custom for purposes of Jill Burella’s

federal equal protection claim. See Burella, 2003 WL 23469295,

at *12. In addition, we note that the District Court rejected the

argument that the Philadelphia Police Department’s “Directive 90”

is an affirmative policy that violates the Pennsylvania Protection

from Abuse Act. Id. at *10-11.

24

Sergeant Francis Healy, the Special Assistant to the former Police

Commissioner, who “stated that victims of domestic violence are

predominantly women;” (2) an expert report prepared for purposes

of the lawsuit that concluded that “the Philadelphia Police

Department has discriminated against female victims of domestic

violence;” and (3) “the manner in which the Police Department

handled her own domestic abuse situation.” Id. at *12. The

District Court explicitly noted that Jill Burella “provide[d] no other

support for the assertion that discrimination against domestic

violence victims amounts to gender discrimination against

women.” Id.

With respect to the issue of causation, the District Court

summarily concluded that “the causation inquiry is one of fact to

be decided by a jury.” Id.

Although the Philadelphia Police Department’s apparent

disregard of Jill Burella’s numerous pleas for help raises a serious

question as to whether this was but one example of a larger pattern

of mishandling domestic violence complaints, we cannot agree that

the factual allegations and evidence identified by the District Court

are sufficient to satisfy the requirements set forth in Hynson. For

example, in Hynson, we cited favorably to Watson v. Kansas City,

857 F.2d 690 (10th Cir. 1988), in which the Tenth Circuit

concluded that a jury could infer discriminatory motive where the

victim produced statistical evidence that nondomestic violence

complaints were more likely to lead to arrest than domestic

violence complaints. See Hynson, 864 F.2d at 1030; Watson, 857

F.2d at 696. In addition, there was evidence in Watson that police

officers received training on how to “defuse” domestic violence

situations, and were instructed to arrest the abuser as a last resort.20

See Hynson, 864 F.2d at 1030; Watson, 857 F.2d at 696.

Similarly, in Brown v. Grabowski, 922 F.2d 1097 (3d Cir.

1990), we noted that plaintiff produced evidence showing that the

individual officers named as defendants in the lawsuit had “dismal”

20

Like George Burella, the abuser in Watson was a police officer.

See Watson, 857 F.2d at 692.

25

records concerning domestic assaults. For example, one officer

failed to file “a single domestic violence complaint or report” in the

period between the enactment of the New Jersey domestic violence

statute in 1982 and when the victim was murdered in 1985. Id. at

1117 n.12.

While statistical evidence and individual arrest records are

not per se requirements in this context, such evidence may often be

crucial. Indeed, in this case there is a marked absence of any

comparable evidence (or even factual allegations) from which a

reasonable jury could find an unlawful custom or infer a

discriminatory motive. Therefore, we need not determine whether

“a reasonable police officer” would have known that the conduct

alleged violated Jill Burella’s clearly established equal protection

rights before concluding that the officers are entitled to qualified

immunity on her claim.21

V. Conclusion

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.

21

We note that the District Court relied on its analysis of Jill

Burella’s federal equal protection claim to deny the officers and the

City summary judgment on her state equal protection claim. See

Burella, 2003 WL 23469295, at *13. Given our federal equal

protection ruling, the District Court may determine on remand that

it is necessary to reexamine the state claim.

26

AMBRO, Circuit Judge, concurring in part

State protection-from-abuse statutes seem to reside in a

rock-solid castle of narrow construction barring any federal

constitutional relief for the very victims that the statutes are

designed to protect. I join my colleagues in their analysis of Jill

Burella’s substantive due process, equal protection, and state-

created danger claims. I join them as well in the result they reach

concerning procedural due process. My comments that follow

address that issue.

In Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005),

the Supreme Court reiterated its “continuing reluctance to treat the

Fourteenth Amendment as a font of tort law.” Id. at 768 (internal

citations and quotation marks omitted). It held that Colorado’s

legislature had created no constitutionally protected entitlement to

protection for victims of abuse because it did not truly mandate that

police officers arrest violators of court-issued restraining orders.

Id. at 760. “[A] true mandate of police action,” the Court opined,

“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. at 761 (quoting Colo. Rev. Stat. § 18-6-803.5(3)(a) & (b)).

Ms. Burella contends that Pennsylvania’s Protection from

Abuse Act of 1994 provided sufficiently clear indication of

mandatory police action. While Pennsylvania’s General Assembly

has made a valiant effort to do so, I cannot submit that it has

succeeded post-Castle Rock. Moreover, even if Pennsylvania’s

Protection Act created a substantive entitlement to mandatory

police action, the officers here have qualified immunity because

any such entitlement was not clearly established at the time of the

events in question. Thus, for any claim to afford constitutional

relief in preventing domestic violence and protecting future victims

of abuse, Pennsylvania’s legislators would need to go back to the

drawing board.

27

“The Fourteenth Amendment’s procedural protection of

property is a safeguard of the security of interests that a person has

already acquired in specific benefits.” Bd. of Regents of State Coll.

v. Roth, 408 U.S. 564, 576 (1972). “To have a property interest in

a benefit, a person clearly must . . . have a legitimate claim of

entitlement to it.” Id. at 577. Such entitlements arise from

“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.; see also Bishop v. Wood, 426 U.S. 341, 345 (1976).

To determine whether a certain interest rises to the level of a claim

of entitlement that is constitutionally protected by the procedural

due process requirements of the Fourteenth Amendment, we look

to the nature rather than the weight of the interest at stake. Roth,

408 U.S. at 571; see also Perry v. Sindermann, 408 U.S. 593, 602

(1972); Morrissey v. Brewer, 408 U.S. 471, 481 (1972). This

means “specific benefits,” Roth, 408 U.S. at 576, that are designed

to benefit a plaintiff directly. See Castle Rock, 545 U.S. at 766.

Castle Rock addressed whether a Colorado statute setting

police officers’ duties in crimes relating to violations of court-

issued restraining orders created a constitutionally protected

property interest or entitlement for victims of abuse in that state’s

statutory scheme. Id. at 751. In concluding that Colorado created

no such interest or entitlement, the Supreme Court reasoned

primarily from the statutory language, which was not sufficient to

overcome “[a] well established tradition of police discretion . . .

with apparently mandatory arrest statutes.” Id. at 760.

Specifically, the Court held that the Colorado legislature failed to

create a “truly . . . mandatory” 22 arrest statute because “shall” had

22

The Castle Rock majority notes that “in the specific context of

domestic violence, mandatory-arrest statutes have been found in

some States to be more mandatory than traditional mandatory-

arrest statutes.” 545 U.S. at 761, 762 (emphasis added). This

language is awkward, as “mandatory” does not have gradations on

a scale. An act is mandated, or it is not. In the same vein, Justice

28

been used elsewhere in Colorado arrest laws to mean “may,” and

because the statute explicitly gave police officers the option of

arresting or seeking an arrest warrant. Id. at 761. The discretion

granted police under the Colorado statute was particularly apparent

in Castle Rock, where the suspected violator was not actually

present. There was also nothing in the statute mandating that

police pursue the violator to enforce the order; rather, they were to

exercise their discretion in whether and how to pursue that violator

or seek a warrant for doing so. Id. at 762. “[A] true mandate of

police action,” the Court opined, “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. (quoting Colo. Rev.

Stat. § 18-6-803.5(3)(a) & (b)). In addition to the insufficiently

strong language, the Colorado legislature had created no “true

mandate” because the nature of the purported entitlement—arrest,

seeking a warrant, or enforcement otherwise—was too

indeterminate. Id. at 763. Finally, the Colorado “mandate” was

lacking because the benefit to the victim of enforcement was

collateral rather than direct, inasmuch as the statute made no

provisions for the victim herself to initiate criminal contempt

proceedings against the violator, keeping that prerogative in the

hands of the state.

Perhaps most importantly, the statute spoke directly

to the protected person’s power to ‘initiate contempt

proceedings against the restrained person if the

order [was] issued in a civil action or request the

prosecuting attorney to initiate contempt

proceedings if the order [was] issued in a criminal

action.’ [Colo. Rev. Stat.] § 18-6-803.5(7). The

Stevens observed, “[t]he innovation of the domestic violence

statutes was to make police enforcement . . . not ‘more mandatory,’

but simply mandatory.” Id. at 784 (Stevens, J., dissenting)

(emphasis in original).

29

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.

In essence, Castle Rock recognized that a state statute could

create a mandatory arrest scheme when the statutory language

strongly signals an intent to curtail police discretion to enforce a

protection order (1) with clearly commanding language, (2) by

excluding the indeterminacies accompanying the option either to

arrest or to seek a warrant, and (3) by creating a direct entitlement

permitting the victim herself to pursue enforcement. The

Pennsylvania Protection Act no doubt comes closer than Colorado

in meeting these tests. Alas, it too fails.

The language of the Pennsylvania Protection Act differs

markedly from Colorado’s discretionary language. Unlike

Colorado’s law, Pennsylvania’s statute did not simply state that

“[a] peace officer shall use every reasonable means to enforce a

protection order” and “shall arrest, or, if an arrest would be

impractical under the circumstances, seek a warrant,” Colo. Rev.

Stat. § 18-6-803.5(3) (emphases added). Rather, the Pennsylvania

Protection Act, when enacted in 1976, required no warrant where

there was probable cause to believe that a suspect had violated a

protection-from-abuse (PFA) order. Following amendments in

1994, the statute now provides that officers “shall arrest a

defendant for violating an order.” 23 Pa. Con. Stat. § 6113(a).

This amended language restricts the window of discretion by

omitting language granting officers the option to seek a warrant

rather than to arrest. The 1994 amendments also permitted victims

to pursue directly (although, as noted below, with limits) criminal

prosecution of protection-order violators. 23 Pa. Const. Stat.

30

§ 6113.1 (providing for “private criminal complaints for violation

of order”). In addition, violation of the PFA order itself became

a crime—that of criminal contempt. 23 Pa. Con. Stat. § 6113(c).

In effecting these three principal changes and some others,

Pennsylvania provided deliberate and strong indication that it

intended arrest to be mandatory under the statute.23 No longer did

it give police the option to arrest; it now commanded it.

The issue is whether this intent to mandate arrest can get

around the “deep-rooted nature of law-enforcement discretion,

even in the presence of seemingly mandatory legislative

commands,” Castle Rock, 545 U.S. at 761, and particularly in

light of the presumption that “all police officers must use some

discretion in deciding when and where to enforce [statutes].” City

of Chicago v. Morales, 527 U.S. 41, 62 n.32 (1999) (emphasis

added). Castle Rock appealed to this presumption, “[t]he practical

necessity for” which it deemed “particularly apparent [in that case]

. . . where the suspected violator [wa]s not actually present and his

whereabouts [we]re unknown.” Castle Rock, 545 U.S. at 762.

To be sure, state and federal criminal statutes typically

specify crimes and penalties without dictating the way law

enforcement will arrest and prosecute suspected criminals, leaving

that to the executive’s discretion. But if courts recognize that it is

ever possible for legislatures to mandate the police to arrest, as

Castle Rock seemed to do, 545 U.S. at 761, I do not see why police

officers’ decisions in how to carry out their duty to arrest, or even

their inability to arrest in certain situations should the perpetrator

23

The statutory history shows a consistent pattern of increasing the

scope of protection and enforceability of protection orders. For

example, the 1994 amendments further created a right of action for

civil contempt in § 6114.1 and recognized foreign protection orders

in § 6118 (providing for “full faith and credit”). We note as well

that amendments in 2001 incorporated the recognition of foreign

protection orders into § 6113, thereby requiring arrest for “foreign

protection order[s]” as well as Pennsylvania PFA orders.

31

be absent, compromise the extent to which a statute mandates

arrest (as the Pennsylvania Protection Act purports to do). After

all, the absence of the perpetrator in Pennsylvania would not lessen

the statutory requirement to arrest him for violation of a PFA

order; it would simply mean the impossibility of carrying out the

mandate at some particular time.

If the Protection Act is read to mandate arrest, a byproduct

of that mandate is of course the specification of a definite

entitlement: arrest for a violation. Castle Rock noted that even if

Colorado’s statutory language required truly mandatory arrest, it

did not create an entitlement because it did not grant the victim the

right to bring a criminal action against the violator to enforce the

order. 545 U.S. at 765–66. It instead permitted the victim to

initiate civil contempt proceedings directly or to request initiation

of criminal contempt proceedings. Id. at 766. This rendered any

government’s enforcement action “indirect and incidental” to the

victim. Id. at 767 (quoting O’Bannon v. Town Ct. Nursing Ctr.,

447 U.S. 773, 787 (1980)).

The Pennsylvania General Assembly attempted to avoid this

infirmity by granting the victim the right to initiate a criminal

prosecution herself. While this gives hope to victims of abuse, my

colleagues correctly point out that proceeding with any such suit

is within the discretion of the local district attorney. Without

commenting on the practical wisdom of stripping the district

attorney of this discretion, it would need to be eliminated were the

Protection Act amended further.

* * * * *

Pennsylvania has enacted statutory provisions much

stronger than those of Colorado to signal its intent to entitle Ms.

Burella and other victims of abuse to redress the lack of

enforcement of PFA orders. This laudable effort, which predates

Castle Rock, does not meet that case’s substantial roadblocks.

32

Further revisions to the Protection Act are required, but in no event

will they help Ms. Burella. Moreover, I reluctantly concede my

colleagues are correct to suggest that a legislature would be hard-

pressed to draft around Castle Rock in light of the “well-

established tradition of police discretion [that] has long coexisted

with apparently mandatory arrest statutes.” Maj. Op. at *17 (citing

Castle Rock, 545 U.S. at 760). Although the Supreme Court has

not held explicitly that a state legislature can never mandate arrest

or that abuse-protection statutes can never create a constitutionally

protected interest, the perception persists that few (if any) paths to

those results are available. There is nothing left but to observe that

[i]n light of [Castle Rock] and . . . DeShaney [v.

Winnebago County Department of Social Services,

489 U.S. 189 (1989)], 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

in its “substantive” manifestations.

Castle Rock, 545 U.S. at 768 (citations omitted) (emphasis added).

The next version of the Protection Act to be written (if at all) by

the Pennsylvania General Assembly requires resolving conflicts of

policy—the protection of citizens and the discretion accorded

police officers and district attorneys in carrying out that function.

Moreover, even if the Act is amended to contain the strongest,

most discretionless language, it may nonetheless succumb to

challenge and prove to be a Potemkin village.24

24

What then can be done? The answer may simply be to take this

case out of a constitutional context and into one of state tort law.

This, of course, would require a waiver of immunity under the

Commonwealth’s Political Subdivision Tort Claims Act. Currently

under that Act, the Pennsylvania government asserts immunity

from claims by individuals “on account of injury to a person or

property caused by the act of [a] local agency or an employee

thereof or any other person.” 42 Pa. Con. Stat. Ann. § 8541. Eight

33

exceptions to governmental immunity are spelled out in 42 Pa.

Con. Stat. Ann. § 8542. These exceptions currently do not provide

for governmental liability for police officers’ failure to protect

victims of domestic abuse. See generally Simmons v. City of

Phila., 947 F.2d 1042, 1084–88 (3d Cir. 1991) (discussing

immunity and liability under Pennsylvania’s Political Subdivision

Tort Claims Act).

34