ALBANY, N.Y., Oct 19 (Reuters) - In a ruling that advocates for domestic-violence victims say could render protection orders worthless, New York's highest court ruled that municipalities and police departments can only be held liable for failing to enforce those orders in extraordinary cases.
In a 5-2 decision released Tuesday, the Court of Appeals vacated a $10 million award granted to a Bronx woman who was shot by her ex-boyfriend after allegedly reporting death threats to the police.
In July 1996, Carmen Valdez obtained an order of protection against her ex-boyfriend, Felix Perez, who had assaulted and stalked her. The order, Valdez' second against Perez, barred Perez from contacting Valdez.
One week later, Valdez testified at trial, Perez called Valdez and threatened to kill her. Valdez left her apartment with her twin five-year-old sons and used a payphone to call the police officer handling her case. The officer, Valdez testified, told her to return to her apartment "immediately," and said Perez would be found quickly and arrested. The next day, Perez showed up at Valdez' apartment and shot her multiple times, seriously injuring her before killing himself. At trial, the officer denied receiving the phone call.
In 2006, a Bronx jury awarded Valdez and her sons $9.93 million, but in 2010 the Appellate Division, First Department, reversed, ruling that Valdez had failed to establish a "justifiable reliance" on the promise allegedly made by the police. In other words, the court said, Valdez had no reason to believe Perez had been arrested and should have been more vigilant.
The Court of Appeals on Tuesday affirmed the First Department's decision.
"Although we should be able to depend on the police to do what they say are going to do, it does not follow that a plaintiff injured by a third party is always entitled to pursue a claim in every situation where the police fall short of that aspiration," Judge Victoria Graffeo wrote for the majority.
Under New York case law, municipalities and individual government employees in New York can be held liable for negligence only if the action in question is found to be ministerial -- required by statute or policy -- rather than discretionary. But even though the lower courts found the officer's failure to arrest Perez to be a ministerial act, the burden was still on Valdez to prove she had a "special relationship" with police or other government officials.
Valdez said her phone call alerting the police to the death threat established such a relationship, but the court rejected that argument.
"It was not reasonable for Valdez to conclude, based on nothing more than the officer's statement, that she could relax her vigilance indefinitely," Graffeo wrote.
The case was watched closely by a number of civil rights and victim advocacy groups, who are concerned the ruling will send a message to victims of domestic violence that orders of protection are essentially worthless.
"When the laws on the books are not enforced, it creates a huge gap for domestic violence victims," said Sandra Park, an ACLU lawyer and the chair of the New York City Bar Association's Domestic Violence Committee.
Park, who authored an amicus brief on behalf of Valdez, said attorneys and advocacy organizations will now have to change the way they advise victims of domestic violence. In particular, she said, victims should be warned that there is no guarantee an order of protection will be enforced, and that holding a police officer legally liable for his or her word is exceedingly difficult.
"We did not want a decision that said our clients should second-guess what police officers tell them; we want laws and protocols that establish trust between victims and the police," Park said.
In a separate, strongly-worded dissent, Chief Judge Jonathan Lippman said the majority was establishing a "devastatingly wrong" precedent that essentially bars people from filing suits against government employees.
"It does not seem possible to say as a matter of law that it is unreasonable to expect the government to act in accordance with its legal mandate; that, however, is what the court holds today," Lippman wrote.
Lippman and Judge Theodore Jones, who also dissented, questioned the majority's decision to reverse a jury finding given that the facts of the case were not disputed.
"The jury specifically found a special relationship existed between (Valdez) and the police department, and there was no basis upon which a court should have disturbed this jury verdict," Jones wrote.
Park said the legislature could address the issue by passing bills that clarify situations in which police may be held liable for failing to enforce protection orders, as well as circumstances that constitute "special relationships" between police and individuals. A handful of other states, including Illinois, already have similar laws on the books.
But any legislative action would require a delicate constitutional balancing act. In 2005, the U.S. Supreme Court ruled that municipalities cannot be held liable under the Constitution for failing to enforce restraining orders. In that case, Castle Rock v. Gonzales, the plaintiff's three daughters were abducted and murdered by her estranged husband after she had obtained an order against him.
With Tuesday's decision, Park said, the Court of Appeals "seems to be closing the door under state law claims as well."
Mordecai Newman, a senior lawyer at the New York City Law Department, said in a statement: "While we feel great sympathy for the plaintiff's tragic injuries, we believe that the Court's holding that the City is immune from liability under the facts of this case is consistent with governing law."
The case is Carmen Valdez, et al v. City of New York, et al, New York State Court of Appeals No. 153.
For Valdez: Edward Sivin of Sivin & Miller.
For New York City: Mordecai Newman of the New York City Law Department.
(Reporting by Dan Wiessner)
Follow us on Twitter: @ReutersLegal