Recent Case

Cook v. Hopkins

The Supreme Court has repeatedly opposed the establishment of an affirmative right of protection against private violence through the Due Process Clause. Some circuit courts have carved out an exception where state action exacerbates or creates the victim’s danger. Recently, the Fifth Circuit in Cook v. Hopkins upheld circuit precedent in declining to apply this “state-created danger” exception. However, even if it had been adopted, it is unlikely that the facts in this case would have overcome the heightened requirements imposed by the four circuits that have carved out the exception.  

On a Friday morning in August 2012, a 911 operator received a call from Deanna Cook in which Deanna was “screaming at the top of her lungs, crying out for assistance” and begging someone to “stop it.” Deanna could not communicate with the operator, and it took ten minutes to identify Deanna’s location, after which a police dispatcher was notified of an “urgent” “Major Disturbance.” Despite the critical nature of the call, the dispatcher did not order officers to respond and instead allowed two officers to volunteer to respond. These officers first stopped at a 7-Eleven to buy water, arriving at Deanna’s house fifty minutes after her call. After knocking on the front door and trying to reach Deanna on her cell phone, the officers soon departed and marked the incident as “resolved.”

Two days later, when Deanna did not show up for church, her family noticed water leaking from her home and dogs barking. Only after breaking down the front door themselves — because a 911 operator told them she could not send help unless they called local prisons and hospitals first — did her family discover Deanna’s body partially submerged in a bathtub.

Deanna was a thirty-two-year-old mother of two. She was a woman of color who lived in Southeast Dallas. Delvecchio Patrick, Deanna’s ex-husband, was later convicted of first degree murder for drowning her and is serving an eighty-five-year sentence. On prior occasions, Deanna had reported to the police that Delvecchio had been violent with her and was stalking her.  

Deanna’s family sued the City of Dallas, as well the 911 operators, dispatcher, and responders involved in the minutes before and the days following her death. Her family sought damages under Texas tort statutes, as well as 42 U.S.C. § 1983, alleging Fourteenth Amendment violations of Due Process and Equal Protection. The due process claims were based on the defendants’ failure to adequately respond to Deanna’s call, and the equal protection claims were based on the defendants’ alleged discrimination against Deanna “for her race, gender, socioeconomic background, and status as a domestic-violence victim.”

The district court granted the individual defendants’ motions to dismiss the state law and due process claims for failure to state a claim and their motions for summary judgment on their equal protection claims based on qualified immunity. The district court also granted the City’s motions for summary judgment on the municipal liability and state law claims and denied the plaintiffs’ multiple requests for additional discovery.

On appeal of each of these orders, the Fifth Circuit (per curiam) affirmed. Regarding the plaintiffs’ due process claims, the court restated the Supreme Court’s holding in Deshaney  v. Winnebago County Department of Social Services that “the Due Process Clauses generally confer no affirmative right to governmental aid.” The only exception explicitly created by the Supreme Court — where the state forms a “special relationship” with the victim through “incarceration, institutionalization, or other similar restraint of personal liberty” — did not apply. Citing Beltran v. City of El Paso, a Fifth Circuit case from 2004, the court rejected the plaintiffs’ argument that the City had created a special relationship with Deanna (by promising to increase patrols and arrest her abuser) because there was no affirmative act of restraining Deanna’s liberty. The court was unwilling to recognize the “state-created danger” theory — another narrow exception carved out by some circuits where the state’s actions “created or exacerbated the danger of private violence against an individual.” However, the court acknowledged that “Deanna might [otherwise] have a viable claim for violation of her due process rights” if the exception applied.

Regarding the equal protection claims against the individual defendants, the court held that “although there may have been customs or policies in place that disproportionately affected female victims of domestic violence in a negative way [evidenced by unattended cases and misplaced paperwork], Plaintiffs ha[d] not shown that these customs or policies were motivated by a desire to discriminate against women.” The court even viewed the City’s efforts to revamp the system following Deanna’s death as evidence of a lack of discriminatory intent.

The plaintiffs’ race- and socioeconomic-based equal protection claim was also unsuccessful: evidence that a single 911 operator (not involved in the case) posted racist comments to her social media and that “private citizens who pay for security alarm systems receive[d] higher priority than citizens in poorer neighborhoods” did not raise any material dispute in fact. Because they “found no constitutional violations on the part of the [i]ndividual [d]efendants,” the court held that the City could not be subject to municipal liability.

The court also denied the plaintiffs’ “class of one” equal protection claims — i.e. that the City discriminated against Deanna for being “a recurrent domestic violence caller” — because it had not been sufficiently pleaded in the complaint and, even if it had been, there was not enough evidence to support the claim of deliberate discrimination. The court also affirmed — on government immunity grounds — summary judgment on the tort claims against the City. Denial of discovery was likewise found to be proper.

The court’s reluctance to apply the state-created danger exception may appear troubling — especially because individuals in Deanna’s situation left with seconds to dial for help rely on the police, rather than notifying friends or family of the danger they face, thereby preventing others from assisting. However, circuits that have applied the exception have created a high bar for plaintiffs to overcome, suggesting that the state-created danger exception — even if applied — might not have afforded the plaintiffs relief. For example, essential elements in the Third, Sixth, and Tenth Circuits include, inter alia, that the state actor “affirmatively” rendered the citizen more vulnerable to danger in a manner that “shocks the conscience” or is “so egregious.”

The Second Circuit seems to have extended the theory the furthest in this regard by allowing explicit and implicit assurances to an offender that their violent behavior would go undeterred to qualify as an affirmative act. In Okin v. Village of Cornwall-On-Hudson Police Department, for example, the court found that over a fifteen-month period certain police officers — who were openly friendly with the perpetrator while at the same time showing disdain for the victim — failed to adequately respond to the victim’s complaints of abuse on at least seventeen separate occasions. The court recognized that the police’s failure to appropriately respond to the victim’s calls itself resulted in the perpetrator’s subsequent escalations of violence.  

Even if the Fifth Circuit had applied the state-created danger exception as elucidated by the Second Circuit, Okin is easily distinguishable: plaintiffs here did not allege that the state displayed arbitrary disdain or disbelief towards Deanna’s claims of abuse, and in fact, on prior occasions, Deanna’s complaints against Delvecchio had led to his arrest. Delvecchio was therefore not under the impression that his behavior was implicitly or explicitly sanctioned by the police. To the extent that the actions of the 911 operator, dispatcher, and officers collectively constituted an inadequate response to Deanna’s call, their actions did not create or exacerbate the danger that she was already in by directly emboldening Delvecchio. Thus, although it is unfortunate that the state-created danger exception does not apply in the Fifth Circuit, that theory — even applied its broadest form by the Second Circuit — was likely itself too limited to have afforded relief to the plaintiffs in this case.