NCJ Number
129688
Journal
New York University Law Review Volume: 65 Issue: 5 Dated: (November 1990) Pages: 1280-1323
Date Published
1988
Length
54 pages
Annotation
This analysis of judicial decisions regarding orders of protection argues that abused women are justified in bringing claims alleging that the failure of police to enforce their restraining orders violated their substantive due process under section 1983 of the Federal code.
Abstract
The United States Supreme Court's 1989 decision in DeShaney v. Winnebago County Department of Social Services reasoned that States have no affirmative duty under the due process clause of the 14th amendment to protect citizens from inflictions of private harm, even where the State has knowledge of an individual's danger and expresses an intent to provide protection to that person, except in limited circumstances. This decision appears to call into question the continuing validity of a line of cases that has expanded the scope of claims under section 1983. However, the scope of its holding is limited by its specific facts. DeShaney was a child abuse case, and the court ruled that the harm resulted from private interaction in which the State had no determinative part. In cases involving battered women, the State undeniably intervenes by granting an order of protection. This order represents involvement by State entities that do not normally intervene in the lives of private citizens. Thus, the State should assume the duty to complete its action through enforcement. 300 footnotes