USCA1 Opinion

January 22, 1997

United States Court of Appeals
For the First Circuit
____________________

No. 96-1024
FLOR MARIA SOTO,
Plaintiff, Appellee,

v.

CARLOS FLORES, ET AL.,

Defendants, Appellants.

____________________

ERRATA SHEET
ERRATA SHEET

The opinion of

this Court issued on January 13, 1997 is correc

as follows:

On cover sheet, line 26: substitute "Laffitte" for "Lafitte".

On page

21, line 2:

substitute "Kneipp v. Tedder,

______
______

1201 (3d Cir. 1996)" for "Kneipp, 95 F.3d at 1201".

______

95 F.3d 11

United States Court of Appeals

for the First Circuit

____________________

No. 96-1024

FLOR MARIA SOTO,

Plaintiff, Appellant,

v.

CARLOS FLORES, ET AL.

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Campbell, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

____________________

Jose Enrique Colon Santana, with whom

___________________________

Gary Broida
___________

was on bri

for appellant.
Vannessa Ramirez,
_________________
Justice, with

Assistant

Solicitor

General,

whom Carlos Lugo-Fiol, Solicitor General,

________________

for appellees.
___________________
January 13, 1997
____________________

Department

was on br

LYNCH, Circuit Judge.

LYNCH, Circuit Judge.
_____________

Rodriguez shot

killed

to

himself.

Rodriguez's wife,

about

death his

the

Rodriguez's

On

two

This tragedy

April

21, 1991,

young children

occurred

physical

and

hands.

threatened to kill Soto

emotional abuse

The

police,

she

knowing

and her family

and

four days

Flor Maria Soto, complained

Angel

then

after

to the police

suffered

at

Rodriguez

had

if Soto went to

the

police to have him jailed for his

violated

their obligations

of confidentiality

Rodriguez of Soto's complaints.

did not jail Rodriguez or take

family.

had

spousal abuse, nonetheless

and informed

Having done so,

the police

steps to protect Soto and her

Soto's lawsuit alleges

that Rodriguez did

what he

threatened to do and that the state created this danger.

Rather than pursue

any claims available to

her under Puerto

Rican law, Soto chose to bring suit in federal court alleging

constitutional tort theories.

Soto brought suit under

that the actions of

officer,

and

superintendent

42 U.S.C.

1983, claiming

the defendants, Carlos Flores, a

Ismael

of police,

Betancourt-Lebron,

violated her

Puerto

and her

police

Rico's

children's

rights to substantive due process

the

laws.

favor

of

The district court

the defendants.

We

and to equal protection of

granted summary

do

not reach

judgment in

the difficult

question of whether Soto, in her capacity as a representative

of

her dead children, has presented a due process claim that

would

survive summary

judgment,

because we

find that

the

defendant

that

claim.

standard

cases.

that

officers

for

are protected

by qualified

immunity on

As to the

equal protection claim,

measuring

such

in

domestic violence

Testing the evidence against that

standard, we find

Soto

has

discriminatory

not

intent

claims

we adopt a

adduced

to

sufficient

survive

evidence

summary

of

judgment.

Accordingly, we affirm the district court.

I. Facts

We recite

the

plaintiff, the

the facts in the light most favorable to

party opposing

Maria Soto married Angel

Rodriguez

and

summary judgment.

Flor

Rodriguez, nicknamed Rafi, in 1981.

and Soto had two children: Sally was born in 1983,

Chayanne, a

boy, in

1988.

Approximately a

year into

their marriage, Rodriguez began to abuse Soto emotionally and

physically.

This

abuse,

often connected

to

drinking, continued throughout their marriage.

apparent

to family

and friends.

As

Rodriguez's

The abuse was

one neighbor

put it,

"anyone who visited them could tell that [Soto] was an abused

wife." Despite his constant

mistreatment of Soto,

Rodriguez

never abused the children.

Rodriguez did gardening and vehicle repair work for

the police

of

the Rio

several of

officers at Palmer Police

Grande

precinct.

Rodriguez

the officers from Palmer

-33

Station, a sub-station

was friends

with

Station, including Luis

Carrasquillo-Morales

("Carrasquillo")1 and

Flores-Moreira ("Flores").

almost daily.

area,

Many of the

would visit the

drink.

about once

Flores

defendant Carlos

Rodriguez visited

officers, when on patrol

Rodriguez-Soto home for

and Rodriguez

a week, during

the

were

his patrol

stop by the house for an hour's visit.

station

in the

coffee or a

particularly friendly;

rounds, Flores

would

On Wednesday, April 17, 1991, Rodriguez struck Soto

about

her face

and

insulting names.

neck,

When

bruising

her,

and

called

Rodriguez fell drunkenly asleep, Soto

gathered the children and went to her mother's house.

mother,

file a

complaint.

she

Rodriguez.

In nine

the one on April

believed

because she had

Rodriguez

Knowing

members of

that

years of beatings,

some of them

17, Soto had never

the police

would

sought help

do

nothing,

nowhere to go, and because she was afraid of

several occasions and

other

Soto's

Hipolita Vega, convinced her to go to the police and

worse than

because

her

her

that Rodriguez

had

threatened her

told her

family if

with

that he would

she

was friendly

went to

with the

gun on

kill her

the

and

police.

police, Soto

feared that the police would do nothing except tell Rodriguez

that she had complained.

____________________

1.

Carrasquillo was originally named

action, but defaulted in the district

order to have a
Soto

sought and

as a defendant in this
court proceedings.

final judgment from which she

was granted

claim against Carrasquillo.

-44

In

could appeal,

voluntary dismissal

of her

On that night, despite her fear, Soto went with her

mother and her children

to the Palmer Police Station.

When

she arrived, she was met by

Flores, who was the desk officer

on duty.

that Soto was crying

Flores could see

with bruises, "pretty ugly hematomas."

Rodriguez had beaten her.

and marked

Soto explained that

Flores then radioed for the patrol

officers to come in and take her complaint, referring to Soto

on the radio as "Rafi's wife" and saying that it was a Law 54

case.

During

the fifteen

to twenty minutes

Flores waited for the patrol officers

that Soto

and

to arrive, Flores told

Soto that he himself had domestic violence problems, and that

his wife wanted

him to be

patch things up

with Rodriguez.

Flores that Rodriguez's

put in

jail.

He

urged Soto

Soto responded by

beatings were too much

to

telling

to stand and

that,

as Flores

knew,

Rodriguez was

became violent when drunk.

that Rodriguez

offered

Soto

a heavy

drinker, who

Soto told Flores about everything

had done and what he would do to her.

the

opportunity

to

stay

overnight

Flores

at

the

station.

Sergeant Orta,2 the supervisor, arrived, and Flores

told

him that Soto was "the lady with the Law 54 complaint."

When

the

patrol officers,

arrived, Flores

Carrasquillo

said, "This is

and

Jose Serrano,

Rafi's wife," and

told them

____________________

2.

The

Sergeant

district

court

denied

Orta as a defendant.

denial of that motion.

-55

belated

No appeal

motion

to

add

is taken from the

that she was there on a Law 54 complaint.

Soto into an interview

at which Flores sat.

to the

room, three steps away from

Soto

was nervous and crying.

interview room remained open, and

everything

that

was

Carrasquillo took

said

in

Soto's

the desk

The door

Flores listened to

conversation

with

Carrasquillo.

In the interview room, Soto told Carrasquillo about

Rodriguez's

behavior,

and

showed

him

Carrasquillo asked Soto whether she wanted

Soto

replied by

explaining her

Specifically, she told

her that

if she put

her

bruises.

Rodriguez jailed.

situation to

the officers.

Carrasquillo that Rodriguez

him in jail,

he would get

had told

out quickly

because his family had money and that he would then kill her.

She told Carrasquillo that Rodriguez had told her that if she

attempted to put

sisters so

him in jail,

that she would go

he would kill her

to the wake and

mother and

he would then

kill her there.

Having told

the police officers

about Rodriguez's

threats,

Soto

asked

them

was

Although

Soto

did

not

to

use the

do

what

words

appropriate.

"domestic

violence

complaint," she believed that

the

officers

Carrasquillo

she

wrote

was

down

by describing her situation to

initiating

everything

the

she

complaint

said

interview, and Soto assumed that he was drafting

against Rodriguez.

-66

process.

during

the

a complaint

Soto's effort to get

police assistance came a year

and a half after a new law aimed at curbing domestic violence

had gone into

legislature

domestic

effect.

In November 1989,

enacted one

of the nation's

violence laws,

Intervention

the Domestic

the Puerto

most comprehensive

Abuse

Act, known popularly as "Law

to defining criminal domestic

Rican

Prevention and

54."

In addition

violence broadly, Law 54 makes

arrest of an abuser mandatory whenever an officer has grounds

to

tit.

believe that Law

8,

required

54 has been

631-635, 638

to take all

recurring,

including

information

about

violated.

P.R. Laws Ann.

(Supp. 1995).

Police officers are

steps necessary to

prevent abuse from

providing

social

the

services and,

complainant

if

she

with

expresses

concern for her safety, with

Id.
___

640.

Law 54

transportation to a safe place.

also requires that police officers file a

written report on all domestic violence incidents, whether or

not

any charges

superintendent

are ever

is

filed.

charged

Id.
___

with

establishing

guarantee confidentiality with regard

persons

involved in

Implementing

police

that

detail the

arrest

incidents of

regulations

issued

The police

"norms

domestic violence."

by the

are

irrelevant factors, including victim

to

to the identity of the

superintendent

officer's responsibilities,

determinations

Procedures to Attend

641.

not

to

be

reluctance.

to Domestic Violence

Id.
___

of

and instruct

affected

by

Rules and

Incidents, Puerto

-77

Rico

Police

regulations

General

Order

explicitly

No.

state

86-26m

that

(Rev.

police

1).

The

attempts

at

mediation or reconciliation shall not substitute for

Id.
___

at 4.

reports

The regulations

be kept

require that

confidential, in

domestic violence

separate files,

copies only be issued upon a court order.

arrest.

and that

Id. at 19.

These

___

regulations explicitly recognize that:

Domestic

violence . .

. frequently ends

in intra-family homicide
all

the

components

and it

affects

the

family,

of

including the children.

Id. at 1.
___

Despite this legal framework, at the conclusion of

his

interview

Carrasquillo

with

Soto,

did not

tell

battered women's shelters

an

order of

visited

police

which

took

Nor

did

no

he prepare

falsely indicated

for advice

of

for obtaining

Carrasquillo wrote up

solely

action.

the availability

or about procedures

Instead,

Report,"

the

Soto about

protection.

violence report.

Services

Carrasquillo

that

relating

domestic

an "Other

Soto

to

had

child

custody.3

Soto returned to Vega's house.

____________________

3.

Soto contends that she

at

the station that night and that the Other Services Report

produced

by the

part

a cover-up,

of

commit perjury.
testimony

of a

defense is

signed a domestic violence report

an after-the-fact

which included

pressure on

Her claim

of forgery is

handwriting

expert, and

suggests that pressure was put on him.

-88

forgery, and
Flores to

supported by

the

Flores's testimony

Carrasquillo

discussed

supervisor, Sergeant Orta, that

signed

the

Other

Services

Soto's complaint

evening.

Report

with his

When Sergeant Orta

he

did

so

despite

information that this was a Law 54 situation and that the men

under his supervision

Sergeant

Flores.4

were not doing what

Orta discussed

Flores

the

told him

"Other

that

marital problems because Rodriguez

the law required.

Services" report

Rodriguez and

with

Soto

was an alcoholic.

had

Flores

said he would talk to Rodriguez the next day.

Sometime the

despite knowing

next day, April

of Rodriguez's

18, Officer

threats to commit

Flores,

murder if

Soto went to the police in an effort to jail him, went to the

Rodriguez-Soto home and told

the police station.

That

home, very upset.

sister,

that

He

Rodriguez about Soto's visit to

night, Rodriguez arrived at Vega's

told Vega and

Glorivee Soto,

Soto's

that "the boys" from the police station had told him

Soto wanted to

put him in

allow that to happen.

at

he would not

Vega managed to calm him and he left.

The next day, Friday,

the plaintiff

jail and that

a local

April 19, Rodriguez ran into

tire

shop.

Rodriguez,

visibly

____________________

4.

police department internal

killings.

On

August 31, 1992,

investigation followed the

the examiner concluded

that

Carrasquillo and Sergeant Orta, the supervisor who signed the

Other

Services

reprimands

for

Report
failing

established by Law 54.

prepared
to

act

by

Carrasquillo,

pursuant

to

the

merited
norms

Neither Betancourt-Lebron nor Flores

was

a subject

of

that investigation,

although Flores

was

interviewed regarding his knowledge of the events.

-99

upset, told plaintiff that

home

jail.

and had told

Officer Flores had been

him that Soto

was going to

Soto, fearing violence, denied

Rodriguez down, but Rodriguez

told him she wanted him jailed.

it.

to their

throw him in

She tried to calm

kept repeating that Flores had

On

again

Saturday,

came to

Vega's home

Soto refused to

prospect

the

go, but

twentieth of

and invited

April,

Soto to

the children, excited

of an outing with

their father, got

Rodriguez

the beach.

at the

rare

into the car.

Rodriguez

did not bring the children back that day as he had

promised.

Soto went twice

to try to pick them up,

but both

times Rodriguez refused to give the children to her.

Finally, at

that the next day was

home determined to

lawn, Soto heard

arrived.

8:00 p.m.

on April 21,

Soto, mindful

a school day, went back to

get the children.

both children tell

As she

stood on

the

Rodriguez that she

had

Sally shouted, "Run, Mommy, please run!"

then shot his

son in the forehead.

the family

Soto

Rodriguez

heard Sally say to

her

father,

"Daddy, no,

Sally through her mouth.

had killed himself.

Carrasquillo and

Rodriguez

then shot

Soto heard a third shot.

Rodriguez

When

the

police,

Serrano, arrived, Rodriguez was

children were still alive

hospital.

Daddy, no."

including

dead.

and the police rushed them

Both children were dead on arrival.

-1010

The

to the

On the wall

children, Rodriguez

of the room

had

written a

that Flores had told him of

message said,

where Rodriguez shot

message which

confirmed

Soto's visit to the police.

among other things, "you left

his

The

me, and Officer

Flores knows it," and "Law 54, which is only a tool for women

to make men do whatever they want, is not liberty."

II. Procedural History

Soto's initial section 1983 complaint

the

alleged that

acts and omissions of Officer Flores deprived her of her

rights

to due process and

Additionally,

she

alleged

to equal protection

that Superintendent

of the laws.

Betancourt-

Lebron

was liable

for

his failure

to

properly train

and

supervise his subordinate officers.

After discovery, Flores and Betancourt-Lebron moved

to dismiss,

In

and, in

the alternative, for

addition to arguing that

defendants

asserted

protections

of

Soto's claims lacked merit, the

they

qualified immunity.

January 20, 1995, the

summary judgment.

that

summary judgment.

were

In

entitled

an opinion

district court granted the

As to

the due process

to

the

dated

motion for

claim, the

court

held that, because an individual may not bring a section 1983

action

for deprivation of due

process based on

injury to a

family member, the death of Soto's children did not give rise

to

a cognizable claim.

Soto v. Carrasquillo,
____
____________

878 F. Supp.

324, 327 (D.P.R. 1996)(citing Valdivieso-Ortiz v. Burgos, 807

________________

______

-1111

F.2d 6,

7-10 (1st Cir.

claim, the court held

evidence

1986)).

As to

the equal protection

that Soto had failed to

on discriminatory

intent

adduce enough

and causation

summary judgment. Soto, 878 F. Supp. at 331-32.

____

to defeat

Soto

requested

motion, she asked for

reconsideration;

as

part

leave to amend her complaint

the action as a representative of her children.

court

treated the

claim

on behalf

complaint as

of

the

amended, but

children,

holding

to bring

The district

dismissed the

it

barred

DeShaney v. Winnebago County, 489 U.S. 189 (1989).

________
________________

accordingly denied Soto's

of her

by

The court

motion for reconsideration.

Soto

appeals.

III. The Section 1983 Claims

Soto

alleges

presses

that the

had

distinct claims.

defendants' actions

children's rights to

the defendants

two

due process.

a custom

or

First,

violated her

she

and her

Second, Soto asserts that

policy of

providing

less

protection to victims of domestic violence than to victims of

other

assaults,

discrimination,

that

that

this

this

defendants thus violated

was

the

caused her

result

injuries,

her right to equal

of

gender

and

protection.

that

We

consider each of these claims in turn.

elements.

claim

under

section

1983

has

two

essential

First, the challenged conduct must be attributable

to a person acting under color of state law (including Puerto

-1212

Rico law); second, the

rights

secured

by

conduct must have worked a

the

Constitution

or

by

denial of

federal

law.

Martinez v. Colon, 54 F.3d 980, 984 (1st Cir.), cert. denied,

________
_____
____________

116

S.

Ct. 515

(1995).

plaintiff to prove

The

second element

not only a deprivation

but also that the defendant's conduct was

the

alleged

deprivation.

See
___

Velazquez-Garcia, 821 F.2d 822, 831

________________

1983

imposes

a causation

ordinary tort law.").

requires the

of federal right,

a cause in fact of

Maldonado-Santiago
__________________

v.

(1st Cir. 1987)("Section

requirement

similar

to that

of

A. The Due Process Claim

_____________________

Soto

attributable

actions

claims that

to

the

the deaths

of her

defendants' actions,

children are

and

that

those

deprived both her and her children of what she terms

"substantive

due process

life

interest."5

We

examine

separately Soto's individual claim and her claim on behalf of

her children.

1.

Soto's Individual Claim.

________________________

____________________

5.

Some victims

alleging

of abuse

that

procedural due
__________

have brought section

official
process.

Human Resources,
________________

nonfeasance

deprived

See, e.g., Meador

___ ____ ______

902 F.2d

denied, 448 U.S. 867 (1990);

______

474,

476-77

1983 claims
them

of

v. Cabinet for
____________

(6th Cir.),

cert.
_____

Coffman v. Wilson Police Dep't,

_______
___________________

739 F. Supp. 257,

263-66 (E.D. Pa.

the plaintiffs argued that

1990).

In these

cases,

state law made certain protective

processes mandatory, and thus created entitlements subject to

due

process

protection

against

Coffman, 739 F. Supp at 263-64.

_______
the record, Soto
process

claim.

does not
Thus,

deprivation.

e.g,
____

However, from our reading of

appear to make
we

See,
____

do

not

a procedural

address

whether

due
the

protective provisions of Law 54 create such an entitlement.

-1313

The

district

court

held

that

Soto,

in

her

individual

capacity, could

not

bring a

based on injury to her children.

due process

claim

Soto, 878 F. Supp. at 327.

____

On

appeal, Soto argues both that the district court erred in

so

holding and

that

the injury

she

complains of

is

not

limited to the loss of the companionship of her children, but

also

comprehends

the

mental

anguish

she

has

suffered

personally.

We review

judgment de novo.
__ ____

Cir. 1996).

the

district court's

summary

Dominique v. Weld, 73 F.3d 1156, 1158 (1st

_________
____

We examine, viewing the record in the light most

favorable to the nonmoving

correctly

grant of

applied

disputed facts

the

party, whether the district court

substantive

have the potential

law

and

to change the

whether

any

outcome of

the suit.

See Martinez v.
___ ________

Colon, 54 F.3d 980,

_____

983-84 (1st

Cir. 1995).

There is no absolute constitutional right to

the

companionship

of one's

encroachments by the state.

807

F.2d 6, 8

family

members

free from

enjoy

all

See Valdivieso-Ortiz v. Burgos,

___ ________________
______

(1st Cir. 1986).

"State action that affects

the parental relationship only incidentally . . . even though

the deprivation may

establish a

be permanent . . . is

violation

of a

Pittsley v. Warish, 927

________
______

502 U.S. 879 (1991).

identified

not sufficient to

liberty

F.2d 3, 8 (1st Cir.),

interest."

cert. denied,
____________

Thus, the death of a family member will

-14-

14

not

ordinarily

process

claim

give

those

under

still alive

section 1983.

See
___

cognizable

due

Manarite
________

v.

Springfield, 957 F.2d 953, 960 (1st Cir.)(child could not sue
___________

police

for

failure

to

prevent

father's

suicide),

cert.
_____

denied, 506 U.S. 837 (1992); Valdivieso-Ortiz, 807 F.2d at 10

______
________________

(stepfather and siblings had no cause of action

guards beat inmate to death).

despite the

ending

where prison

Here, the defendants' actions,

tragic outcome,

were not specifically

or affecting Soto's

relationship with

aimed at

her children.

Nor can Soto successfully distinguish her case from the cited

precedents

anguish.

but

of

the

plaintiff

right.

heartbreaking

against

by

The question is not

whether

federal

this court

all

While

She

to

her own

mental

one of a degree of suffering,

can establish

Soto's

magnitude, the

harms.

pointing

loss

violation

was

of

Constitution does

herself

was

constitutionally protected interest, and

not

of

enormous,

not protect

deprived of

she may not bring a

section 1983 due process claim on her own behalf.

2.

Soto's Claim as a Representative of Her

_____________________________________________

Children.
________

In deciding Soto's

district court granted Soto's

so

as to bring a claim

motion for reconsideration, the

request to amend her complaint

as a representative of her children.

The court then found that the children's claim was foreclosed

-1515

by DeShaney, dismissed
________

the claim and

denied the motion

for

reconsideration of the due process claim.

Review of denial of a motion for reconsideration is

for

abuse

of

discretion.

See
___

Airline Pilots Ass'n v.

______________________

Precision Valley Aviation, Inc., 26 F.3d 220,

________________________________

1994).

For

purposes

complaint,

as amended,

committed

legal

representative of

which

relief could

Hartmarx,

496 U.S.

error

of this

appeal,

to determine

in

we consider

if the

holding

227 (1st Cir.

that

Soto's

district court

Soto,

as

her children, failed to state a claim upon

be

granted.

384, 405

See
___

Cooter & Gell

_______________

(1990) (district

v.

court abuses

________

discretion

when it

makes

Computervision Corp.,
_____________________

error of

90

F.3d

law);

617

cf. Glassman
___ ________

(1st

Cir.

v.

1996)(in

reviewing denial of leave to amend complaint, court considers

whether complaint as amended would state cognizable claim).

Defendants argue, and the district court held, that

any claim on behalf of Soto's children is barred by DeShaney,

________

which held that "a

against

private

State's failure to protect an

violence

simply

violation of the Due Process

does

Clause."

not

individual

constitute

489 U.S. at 197.

We

agree that if Soto's argument were simply that Flores and his

brother

officers

Rodriguez,

it

failed

to

would clearly

protect

fail.

her

children

See, e.g,
___ ___

Pinder
______

from

v.

Johnson, 54
_______

process claim

F.3d 1169 (4th

Cir.) (en

banc) (rejecting

based upon police failure

due

to protect domestic

-1616

violence

Balistreri
__________

victim),

cert. denied,
_____________

116 S.

Ct.

530

(1995);

v. Pacifica Police Dep't, 901 F.2d 696 (9th Cir.

_____________________

1990)(same).

However, Soto

protect.

record,

She

claims,

that Officer

alleges more than a

and her

claim

Flores visited

mere failure to

has support

in

Rodriguez at

home and

told him that Soto had been to the police station and

to jail

him.

not

character well,

had

him

how Rodriguez would likely react

only

because

Flores

but also because Flores

threatened to murder her

went to

wished

She further alleges that when he did so Flores

was fully aware of

information,

the

knew

to this

Rodriguez's

knew that Rodriguez

and her family

members if she

the police and attempted to stop his abuse by having

jailed.

Soto alleges

that he had obtained

that Flores

misused information

in an official capacity, and

that this

affirmative act rendered her

children more vulnerable to the

danger posed by Rodriguez and thus led to their deaths.

Soto

of

alleges that Flores's conduct violated a duty

constitutional

dimension

DeShaney clearly establishes

________

constitutional

violence.

the Supreme

duty to

owed

to

Soto's

children.

that the state does not

protect

its

DeShaney, 489 U.S. at 197.

________

Court also recognized a

citizens from

However,

have a

private

in DeShaney,
________

distinction between the

case before it and other cases in which the state created the

risk faced by the plaintiff:

-1717

While the State

may have

been aware

of

the dangers that [the plaintiff] faced in

the free

world,

it played

no

part

in

their creation, nor did it do anything to

render him

any more vulnerable

to them.

[By returning the plaintiff child

abusive

to his

father, the State] placed him in

no worse position

than that in which

he

would have been had it not acted at all.

Id. at 201.
___

The situation here arises from the state actor's

affirmative acts, which

to

the children and

played a part in creating the danger

rendered them more

vulnerable to harm.

Soto

thus contends

DeShaney, in
________

1983

by

plaintiff."6

original);

it

an

wherein

officer

directly
________

Pinder,
______

54

outside

at

scope

of

alternate framework of

plaintiff

F.3d

the

alleges

caused

1176 n.*

harm

that

to

(emphasis

some

the

in

see also Dwares v. City of New York, 985 F.2d 94,

________ ______
________________

99 (2d Cir. 1993)("[T]hough

officers

falls

that it "implicates the

liability

conduct

that

had failed

to act

an allegation simply that police

upon reports

of

past violence

would not implicate the victim's rights under the Due Process

Clause,

an allegation

____________________

that

the officers

in

some way

had

6.

The distinction between duty-to-protect cases and danger-

creation

cases

was

Circuit in Bowers
______
While holding that

colorfully

described

v. De Vito, 686 F.2d

_______
"there is no

by

the

Seventh

616 (7th Cir. 1982).

constitutional right to

be

protected by the state against being murdered by criminals or

madmen," Judge Posner pointed out that "[i]f the state puts a
man in a
fails

to

position of
protect

danger from private

him, .

active

tortfeasor as if it had thrown him into a snake pit."

Id. at
___

-1818

is

as much

then

an

618.

it

persons and

assisted in creating or

increasing the danger to

the victim

would indeed implicate those rights.").

Not

every negligent,

or even

willfully reckless,

state action that renders a person more vulnerable to

danger

"take[s] on

of the

federal

the added

character of

Constitution."

Monahan v.
_______

[a] violation[]

Dorchester Counseling
______________________

Ctr., Inc., 961 F.2d 987, 993 (1st Cir. 1992).

__________

of risk situation,

third party,

where the

courts must

ultimate harm is

be careful to

In a creation

caused by

distinguish between

conventional torts and constitutional violations, as well

between

state inaction and action.

at 1175-78.

as

See id.; Pinder, 54 F.3d

___ ___ ______

The scope

based

on

of any

state-created

permissible section

danger

question. See, e.g., Pinder, 54

___________ ______

F.2d at

993-94.

resolved

Because we

theory

is

F.3d at 1175;

find that

on immunity grounds,

1983 action

this

we choose

difficult

Monahan, 961
_______

claim may

not to

be

reach this

question.

3. Qualified Immunity.
______________________

Assuming arguendo that Soto had stated a claim that

Flores

and

Betancourt-Lebron

constitutional

rights,

the

violated

issue

her

becomes

children's

whether

the

defendants are entitled, as they argue, to qualified immunity

from suit.

analysis.

There

are

two prongs

See St. Hilaire

___ ___________

v.

to

qualified

immunity

Laconia, 71 F.3d 20, 24 (1st

_______

-1919

Cir. 1995).

First, the court must determine, as

a matter of

law, whether the constitutional right in question was clearly

established at

the

right is

the time of the

alleged violation.

clearly established, the

court must

Id.
___

If

then ask

whether a

reasonable similarly situated officer "should have

understood that the challenged

conduct violated" that right.

Id.
___

To

begin,

Soto's

arguments

against

immunity appear

to misconstrue

the doctrine.

with evidentiary

support, that

not only did

violate Law 54

they

knew or

violating it.

possible if

qualified

Soto argues,

the defendants

and the pertinent regulations, but

reasonably should

have known

also that

that they

were

According to Soto, "[n]o good faith defense is

the official

knew he was

violating plaintiff's

rights."

The

Supreme

Court has

considered,

this approach to qualified immunity.

and rejected,

Davis v. Scherer,
_____
_______

468

U.S. 183, 193-95 (1984).

official

could

conduct that

not be

reasonably

norms.

In Davis, the plaintiff argued that

_____

contravened a

objectively reasonable

be expected

Id. at 193.
___

to

statute

or regulation

because officials

conform their

conduct to

may

legal

The Court rejected this approach because

it would "disrupt the balance . . . between

the interests in

vindication of citizens' constitutional rights and in

public

officials' effective

Id. at
___

performance of

-2020

their duties."

195.

lose

"Officials sued

for constitutional violations

their qualified immunity

merely because

do not

their conduct

violates some statutory or administrative provision." Id.

___

194; see also

________

Borucki v. Ryan,
_______
____

827 F.2d 836, 847

at

n.18 (1st

Cir. 1987).

Accordingly, Soto's arguments with regard to Law

54, even if

her alleged facts are

qualified immunity question.

there is clearly settled

at issue.

This

true, do not resolve

The focus is rather

the

on whether

law on the constitutional violation

inquiry is

sharpened

by two

narrowing

principles.

The

right

must

be

stated

with

sufficient

particularity so that a "'reasonable officer would understand

that what he

must

is doing

have been

"clearly

defendants' alleged

through the

640

the time

improper actions, and

(1987)).

power so as to

at

Souza
_____

and the

. .

right

of

the

. not .

. .

v. Pina, 53 F.3d 423,

____

1995) (quoting Anderson v. Creighton, 483 U.S.

________
_________

constitutional duty

more

established

use of hindsight."

425 (1st Cir.

635,

violates that right'"

The

issue

is

thus

not to affirmatively

whether

abuse governmental

create danger to individuals and

vulnerable to

harm

was clearly

the

render them

established in

April

1991, the time of the events giving rise to this suit.

What the Third

Circuit termed the

"'state-created

danger theory,'"

Kneipp v.
______

Tedder, 95
______

F.3d 1199,

1201 (3d

Cir. 1996), has been

recognized by some federal courts

viable mechanism for

establishing a constitutional

as a

claim at

-2121

least

since 1979.

(7th Cir.

See White
___ _____

v. Rochford, 592 F.2d 381, 383

________

1979) (finding Due Process

Clause violation where

"unjustified and arbitrary refusal of police officers to lend

aid

to children

endangered by

duty .

. . ultimately

injury

to the

result[ed] in physical

children");

Highland Lake, 880 F.2d 348

______________

494

U.S. 1066 (1990); Wood

____

Cir. 1989),

cert. denied,
____________

Webb, 785 F.2d

____

Supreme Court

dangers or

the performance

534, 538

see also
________

v. Ostrander, 879
_________

498 U.S.

938

(5th Cir. 1986).

state

v. Town of
________

F.2d 583 (9th

(1990); Checki
______

v.

In DeShaney,
________

the

actions that

citizens more vulnerable

could amount to constitutional violations.

U.S. at 201.

and emotional

(11th Cir. 1989), cert. denied,

____________

acknowledged that

render private

Cornelius
_________

of official

create

to harm

See DeShaney, 489

___ ________

Since DeShaney, seven circuit courts of appeals

________

have

recognized

circumstances,

section 1983.

that state-created

give

rise

to

dangers may,

constitutional

See Kneipp, 95 F.3d

___ ______

in proper

claims

under

at 1208 (citing cases and

tracing history of state-created danger theory).

While

favor of

this

this

history

finding that

would appear

there is clearly

area, in 1991 the

First Circuit had

the issue of state-created dangers.

court to

v.

discuss the contours

militate in

established law

in

not yet addressed

The first case from this

of that doctrine

Dorchester Counseling Ctr., Inc., 961

________________________________

1992), and that case

to

was Monahan
_______

F.2d 987 (1st Cir.

held that, on the facts

alleged, there

-2222

was no constitutional violation.

Of course, a

violation of

clearly settled law may be found even where the Supreme Court

and the

circuit in question have

the question.

not specifically addressed

See 2 Nahmod, Civil Rights and Civil Liberties

___
________________________________

Litigation: The Law of Section 1983,

_____________________________________

8.07,

at 134-35 (3d

ed. 1991) (citing cases).

However,

we cannot

extract a

right from a somewhat confusing

use of

turn

body of caselaw through

on

the

Pizarro, 54
_______

eventual

outcome of

analysis."

F.3d 980, 989

state-created

uneven

one.

hitherto

(1st Cir. 1995).

danger

The

problematic

Martinez-Rodriguez
__________________

theory,

comprehensively described by the

an

the

hindsight, or "permit claims of qualified immunity to

constitutional

the

clearly established

v.

Colon______

The history of

although

recently

Third Circuit in Kneipp, is

______

distinction

between

affirmatively

rendering citizens more vulnerable to harm and simply failing

to protect

sometimes

them

has been

found that

blurred.

given action,

Moreover, courts

while rendering

have

the

plaintiff

more

vulnerable to

constitutional violation,

state law tort.

950

begun to

See, e.g., Kneipp,

____ _____ ______

not amount

but instead should be

See, e.g., Cannon v. Taylor,

____ _____ ______
______

(11th Cir. 1986).

that have

danger, did

It is more

clarify the

95 F.3d

-2323

viewed as a

782 F.2d 947,

recent judicial opinions

contours of

this doctrine.

at 1208-10; Pinder,
______

1174-1177.

to a

54 F.3d

at

We conclude therefore that, in

of

1991, "the contours

the right were [not] sufficiently plain that a reasonably

prudent state actor

conduct

might be

would have realized not

wrong, but that

constitutional right."

merely that his

it violated

Martinez-Rodriguez,
__________________

a particular

53 F.3d at

Accordingly, we find that the defendants are entitled

protections of

qualified immunity,

court's grant of summary judgment

due process claim.

B.

The Equal Protection Claim

__________________________

and affirm

988.

to the

the district

on plaintiff's substantive

In

"[t]he

DeShaney, the
________

State

protective

may

not,

Supreme Court

of

course,

selectively

Soto alleges an

assertion

its

that

489 U.S. at 197 n.3.

equal protection violation in

"[d]efendants

have

custom,

practice of treating complaints from, or on

threatened

with violence

other

discriminated

victim."

deny

services to certain disfavored minorities without

violating the Equal Protection Clause."

from

acknowledged that

complaints

on the

in

of

basis of

the

sex of

and

behalf of, women

domestic disputes

violence.

policy

her

differently

Defendants

have

the complaining

The district court measured Soto's equal protection

claim7 under the standard for such claims brought by domestic

____________________

7.

The

Ortiz's
_____

district

court

bar

section

on

correctly
1983

found

actions

that
for

Valdivieso___________
due

process

violations based on the death of a family member has not been

extended to equal protection

claims.

Soto, 878 F.
____

Supp. at

328 n.6.

-2424

violence

Circuit in

victims that

was

first articulated

by the

Tenth

Watson v. City of Kansas City, 857 F.2d 690 (10th

______
___________________

Cir.

1988),

circuits.

and

subsequently

adopted

by

several

other

Under the Watson standard, a plaintiff seeking

______

to

defeat a motion for summary judgment must:

proffer

sufficient

reasonable jury to

evidence

infer that it is the

custom of the police

victims

that would

policy or

to provide less protection to

of domestic violence than to other victims

of violence, that discrimination against

a

allow

motivating factor,

and that

the

women was

plaintiff was

injured by the policy or custom.

Ricketts
________

1994)

v. City of Columbia,
_________________

36 F.3d

775, 779

(8th Cir.

(citing Watson, 857 F.2d at 694), cert. denied, 115 S.

______
____________

Ct. 1839 (1995).

The

district court

sufficient evidence to

the police force

had a

found

that

Soto had

create a genuine issue

custom or policy

adduced

as to whether

of providing

less

protection

assault

to victims

victims.

of

domestic violence

than to

Soto, 878 F. Supp. at 329.

____

We agree.

other

The

court also found that plaintiff had failed to meet her burden

in opposing

summary judgment8

intent prong or

on either the

the causation prong of the

discriminatory

Watson standard.
______

Id. at 332.
___

____________________

8.

It

was

sufficient

part

of

Soto's

evidence

Soto's

intent

to

facie

of discriminatory

Lipsett, 864 F.2d at

_______
was

prima

896.

adduce

create

trialworthy

to proffer

intent.

In opposing summary

burden to
a

case

sufficient
issue.

See, e.g.,
__________
judgment, it

evidence of
See
___

that

National
________

Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 743-44 (1st

_________________
______________
Cir.), cert. denied, 115 S. Ct. 2247 (1995).
____________

-2525

In a matter of first impression

adopt the

Watson standard for section

______

claims brought

circuits have

follow

repeatedly

for this court, we

1983 equal protection

by domestic violence victims.

considered similar

sadly

similar

seeking police

claims.

pattern; an

abuse

protection

from

Several other

These

tragedies

victim,

after

her abuser,

is

gravely injured or

claims

under

killed.

section

1983

The victim, or

that law

her next of kin,

enforcement

policies

provide lesser protection to victims of domestic violence and

discriminate

Block,
_____

on the basis of

72 F.3d 712 (9th

gender.

See, e.g, Navarro v.

__________ _______

Cir. 1996); Eagleston

_________

F.3d 865 (2d Cir. 1994), cert. denied, 116 S.

____________

Ricketts, 36 F.3d at
________

(3d

v. Guido, 41
_____

Ct. 53 (1995);

775; Brown v. Grabowski, 922

_____
_________

F.2d 1097

Cir. 1990), cert. denied, 501 U.S. 1218 (1991); McKee v.

____________
_____

City of Rockwall, 877 F.2d 409 (5th Cir. 1989), cert. denied,
________________
____________

493 U.S. 1023 (1990); Watson, 857 F.2d at 690.

______

Under the

standard we adopt today,

Soto must show

that there is a policy or custom of providing less protection

to

victims

of domestic

crimes, that

gender discrimination

and that Soto was

F.2d

an

at 694.

issue as

providing

violence than

to victims

is a

of other

motivating factor,

injured by the practice.

See Watson, 857

___ ______

Soto has adduced evidence sufficient to create

to

less

whether there

protection

to

was

a custom

domestic

or policy

violence

of

victims.

Closer questions are whether Soto adduces evidence sufficient

-2626

to permit the drawing of the necessary inference of an intent

______

to

discriminate

sufficient

against

evidence that

women

her

and

whether Soto

injuries were

provides

caused by
______

the

summarized as follows:

(1)

alleged custom or policy.

Soto's argument may be

that the Preamble to Law 54 explicitly recognizes that "women

are usually the victims of . . . conjugal abuse" and that Law

54

expresses

children from

legislative

intent to

protect

domestic violence;9 (2) that,

domestic violence

complaints involve females

women

and

although 95% of

as victims and

males

as perpetrators, one out of every four persons in jail

in Puerto

statements

Rico for domestic

of

violence is female;10

the individual

in

charge of

the

(3) that

police in

Puerto Rico, Betancourt-Lebron, demonstrate

both that Law 54

is not enforced as

his disagreement

are other laws and that

with the law, which may reasonably be understood to be gender

motivated,

has

led

to

non-enforcement

by

subordinate

____________________

9.

Law 54

has been

noted in

ambitious and comprehensive

See Rivera,
___

academic literature

approach to domestic

for "its
violence."

Puerto Rico's Domestic Violence Prevention and

________________________________________________

Intervention Law and the United States Violence Against Women

_____________________________________________________________
Act of 1994: The Limitations of Legislative Responses,
_________________________________________________________
Colum.

J. Gender & L. 78,

how official resistance to

80 (1995).

Rivera also describes

Law 54 has been an

impediment to

implementation.

10.

While

arrest
compared

Id. at 94-95.
___

Soto admits

rates

for

to arrest

violence, she

men

that

she presented

charged with

rates

for women

asserts that such

no evidence

domestic

violence

charged with

comparisons are

of
as

domestic
impossible

because Puerto Rico has chosen not to gather this data.

-2727

officers; (4) that there

was no police training

on domestic

violence prior to the events at issue; (5) that statements by

Sergeant

Orta,

and

acknowledge that

in

1991 did

Officers

Flores

police officers in the

not

enforce Law

54;

and

Carrasquillo

Rio Grande precinct

(6) that

statements

by

individual officers demonstrate gender bias and stereotyping,

indicating that

the Law was not

enforced for discriminatory

reasons; (7) that the non-discriminatory

the

non-enforcement are

enforcement of Law

pretextual;

reasons offered for

(8) that

54 therefore permits

differential

an inference of

an

intent to discriminate; and (9) that her injuries were caused

by the non-enforcement of the domestic violence law.

Defendants argue that no intent to discriminate can

be inferred

truism

that

from mere

under

non-enforcement of

current

Equal

a law.

Protection

It

is a

Clause

jurisprudence, a showing of disproportionate impact

not enough

to establish

Washington
__________

v. Davis,
_____

"impact

provides an

alone is

a constitutional violation.11

426

U.S. 229,

242

important starting

(1976).

point" for

See
___

While

a court

seeking to determine if the adverse effect reflects invidious

gender-based

discrimination,

"purposeful discrimination

is

____________________

11.
an

"The Court's refusal to treat

equal protection

stingy process
introduction of

theory

selective indifference as

violation suggests
over one

impact analysis."

a preference

that invites
Klarman,

for a

surreptitious
An Interpretive
_______________

History of Modern Equal Protection, 90 Mich. L. Rev. 213, 299

__________________________________
(1991).

-2828

'the condition that

Administrator v.
_____________

where

existence

98%

Constitution.'"

Feeney, 442 U.S. 256,

______

omitted) (upholding

hiring

offends the

274 (1979) (citation

a veteran's preference

of

of disparate

veterans

were

treatment --

Personnel
_________

in civil service

male).

even

"[T]he

mere

widely disparate

treatment -- does not furnish adequate basis for an inference

that

the

discrimination

was

[impermissibly]

motivated."

Dartmouth Review
_________________

(1989);

v.

see Siegel,
___

Dartmouth College, 889

__________________

the

105

Yale

doctrines of equal

development

13,

19

"The Rule of Love": Wife Beating as

_______________________________________

Prerogative and
Privacy,
__________________________

(1996)(modern

F.2d

of

facially

L.J.

2117,

2190-94

protection have encouraged

neutral

policies

that

are

difficult to challenge on constitutional grounds).

domestic violence

equal protection

seeking

violation must thus show

policymakers and actors

victim

to prove

that the relevant

were motivated, at least in part, by

discriminatory purpose.

Feeney,
______

442 U.S.

at 274.

Supreme Court has defined discriminatory purpose as being:

more than intent as volition or intent as

awareness of

an

consequences.

. .

It

The

implies

that

the

decisionmaker

. .

selected or reaffirmed a course of action

at least in part "because of," not merely
"in spite of" its adverse effects upon an
identifiable group.

Id. at 279.
___

Without

the

discriminatory statement

smoking

gun

of

by a decisionmaker, it

-2929

an

overtly

may be very

difficult

to offer

sufficient

proof of

such a

purpose.12

See, e.g., Eagleston, 41 F.3d at 878 (statistics showing that

__________ _________

domestic violence

complaints were

arrest than were stranger

less likely to

result in

assault complaints and evidence of

underenforcement of official domestic violence policy did not

constitute

evidence of

Ricketts, 36 F.3d
________

domestic

abuse

support for

plaintiff

are

women,

presented no

intent or

(although over 90%

and police

discriminatory intent toward

against women).

courts

at 781

discriminatory

evidence

purpose);

of victims

statements

of

offered

domestic disputes,

of intent

to discriminate

It is true, as Soto points out, that some

have allowed the

equal protection claims of domestic

violence victims

See
___

to proceed

Balistreri, 901
__________

plaintiff's

F.2d

on an arguably

at 701

(remark

husband was entitled to hit

lesser showing.

of officer

that

her because she was

"carrying on" suggested an animus against women sufficient to

allow plaintiff's

Thurman
_______

complaint to survive

v. City of Torrington,
__________________

(D. Conn.

1984)(viewing equal

violence

victim

misconception"

in

595 F.

of

"increasingly

prerogative

dismiss);

Supp. 1521, 1528-29

protection claim of

terms

of husband's

motion to

domestic

outdated

to discipline

his

____________________

12.

As

the Third

Circuit has recognized

in the

Title VII

context, it is rare that discrimination wears its garb openly

and it more often comes "masked
fact

in subtle forms."

Triers of

may recognize those more subtle forms for what they are

and coded

comments may

raise inferences

of discrimination.

Aman v. Cort Furniture Rental Corp., 85 F.3d 1074,

____
____________________________

1082 (3d

Cir. 1996).

-3030

wife)

(internal

quotation

marks

and

citation

omitted)).

However, we think that the stringent standards imposed by the

majority

Supreme

of circuit

courts

Court's approach

are more

in

keeping with

to equal protection

the

challenges to

facially

neutral

policies.

It is

in

this light

that we

evaluate Soto's equal protection claim.

This is not the usual case in which plaintiffs seek

to

prove

discriminatory

differential

impact.

intent

from

the

mere

fact

of

Nor is this the more common case where

plaintiff in a civil rights action seeks to use the courts

to upset the

majoritarian preferences expressed

legislative

process.

benefit

the

of

Rather,

plaintiff

protection afforded

legislative process and argues that

by

through the

here

that

seeks

the

majoritarian

she has been deprived of

that protection by the actions of individual public officials

motivated by a contrary, gender-discriminatory intent.

The

legislative

statutory

intent

language

evident

from

of

its

Law

54,

preamble,

and

serve

the

to

differentiate

this case

from the

typical

disparate impact

case. The Law's prefatory "Statement of Motives" states that:

Although

men as

well

victims of conjugal

as

women may

abuse, studies

be
show

that women are usually the victims of the

aggressive
call

and

violent conduct

conjugal

investigators

abuse.
figure

married women in

that

that we

The

60%

of

all

Puerto Rico are victims

of conjugal abuse.

-3131

Statement

of

Intervention

omitted).

Motives,

Act,

This

Act

Domestic

No.

54

recognition

Abuse

(Aug.

that the

Prevention

15,

and

1989)(citation

problem of

domestic

violence impacts women most heavily is reiterated in the text

of Law 54 itself:

In developing
matter, we
handling
domestic

the public policy

must
of

on this

give attention
the

to

difficulties

abuse presents,

the
that

especially for
______________

women and children.

__________________

P.R. Laws ann. tit.

Law

54 also

8,

explicitly

601 (Supp. 1995)

(emphasis added).

recognizes that

discrimination has

impeded

institutional

Domestic

responses

abuse

is

one

to

domestic

of

the

critical manifestations of the

inequities

in the

men and women.

attitudes,

violence:

most

effect of

relationships between

The discriminatory ideas,

and

conduct

also

permeate
________

those social institutions called upon to

_________________________________________
resolve and prevent
the problem
of
_________________________________________
domestic abuse and its consequences.
_______________________________________
The

efforts

identify,

of

these

understand

institutions
and

handle

to

abuse

have been limited, and often inadequate.

Id. (emphasis added).

___

In

the

plaintiff will

disfavored

starting

more

usual

equal

present evidence

group

in an

point" for

case,

of disparate impact

attempt

proof of

protection

to

provide an

upon a

"important

discriminatory intent.

See,
___

e.g.,
____

Feeney, 442
_______

Motives of

that

Law 54

U.S.

at 274.

Here, the

contains an explicit

Statement

of

legislative finding

domestic violence has a greater impact on women and the

-3232

Law

expresses

an intent

to ameliorate

that impact.

legislative finding is evidence that underenforcement

This

of Law

54

would indeed

have a

greater impact

on women

and might

therefore be motivated by gender discrimination.

Moreover, the express legislative desire

women

victims of

domestic violence

to assist

and recognition

of the

problem of discrimination within responsible institutions are

important

the

factors to be considered in the "give and take" of

situation.

(discriminatory

been called

(citation

. .

See
___

intent is

. 'the

omitted).

discriminatory

Feeney,
______

442

often "made

give and

The Supreme

intent inquiry

U.S.

at

279

clear from

take of

what has

the situation'")

Court has

should look

n.24

said that

not only

the

at the

different impact a policy has on a disfavored group, but also

at the history behind the development of a

policy, including

looking

at the

problems it

was intended

to address.

See
___

Arlington Heights, 429 U.S. at 266-68.

_________________

To

the extent

Arlington Heights are

__________________

deference

rooted

to democratic

preferences, the

here.

that decisions

See,
___

in

an

processes and

rationale of

such as

Feeney and
______

appropriate

judicial

rational legislative

deference is

e.g., Feeney, 442 U.S. at 271

_____ ______

less compelling

("The calculus of

effects, the manner in which a particular law reverberates in

society,

is

legislative

responsibility. . . .[I]t

and

not

judicial

is presumed that 'even improvident

-3333

decisions

will

eventually be

rectified

by

the democratic

process. . . .'" (citations omitted)); Arlington Heights, 429

_________________

U.S. at 265 ("[I]t

are

properly concerned

considerations that

of

is because legislators and administrators

their decisions,

irrationality.").

with

balancing

numerous

competing

courts refrain from reviewing the merits

absent

With

a showing

Law 54,

of arbitrariness

the legislature

or

of Puerto

Rico has expressed, through the democratic process, an intent

to protect the female

victims of domestic violence and

___

has

noted that enforcement agencies have been discriminatory

part of the

problem.

those charged with

subversion

of

illegitimate

Thus, underenforcement of

administering the

majoritarian

motives.

We

law may in

processes

believe, in

for

Law 54

by

fact be

individual,

this context,

action by officials leading to non-enforcement of Law

be

some
____

evidence

individuals.

of

discriminatory

The policy Soto

Law 54, but the

protections.

motivated

that decision,

54 may

by

implement the Law when

In determining what,

the

that

challenges is, of course,

decision not to

sought its

intent

factfinder

and

those

not

she

if anything,

may consider

the

purposes of

the Law itself, and

draw appropriate inferences

about what might motivate a decision not to effectuate

purposes.

and

As the Law

eradicate

decision

not

expressly seeks to

institutional

to

implement

aid women victims

discriminatory

the

-3434

Law

may

those

attitudes,

well

have

been

motivated not "in spite

impact on women.

We

of," but "because of"

the resulting

review the record to see

whether there

issufficient evidence of intentas to eachof named defendants.

__________

1. The Rio Grande Precinct

__________________________

In reviewing whether the

failure to enforce Law 54

was motivated by discriminatory intent, we look first

actions of the officers in the Rio Grande precinct.

actor at the precinct level was Sergeant Orta.

Soto

was making a

Law 54 complaint, yet

Services Report in violation

have Rodriguez arrested.

to the

The

key

Orta was told

he signed an Other

of Law 54 and took

no steps to

Nor did he take any steps to remove

Soto

and her children from harm's

was

going to talk to Rodriguez and

way.

He knew that Flores

did not try to stop him.

He thus ratified and condoned

the officers' disregard of Law

54.

Orta's

statements, as

described below,

suggest a

discriminatory attitude towards women; this attitude may have

been one of the reasons behind the lack of enforcement of Law

54

at

the Palmer

Sergeant Orta

easily

biases.

find

substation

made statements

reveal

of the

Rio

Grande precinct.

which a trier

gender-discriminatory

of fact

stereotypes

He testified as follows:

Q: What is your opinion of Act 54?

A: I told you the first time, and I remit

myself to the record,
disagreement
that

it

is

that I am in total

with that
very

Act.

unjust

I believe
related

to

could

and

-3535

aggressions

against women

and I

do not

agree with that.

Q: Why
with

do you believe it
relation

to

is very unjust

aggressions

against

women?

A:

Sometimes

course,

men,

but sometimes one

outside or has a
friend

including myself

on

the

drinks on the

woman on the side

side,

and

of

one

has

or a
an

argument with one's lady friend

and goes

home and takes it out on the wife.

And I

believe that is not just.

. . .

Q: Then

I ask

you, again, what

is your

opinion with relation to the law?

A: Well,

the thing

spite

of it

being

able

always

Credibility
there

are

mentioning both
to

the

is that the

parties as

complain, the
person

who

law, in

woman

is

is

injured.

is given to the woman, where

occasions

when that

doesn't

happen that way.

The weight to be

given to Sergeant Orta's comments

depends upon many factors.

See National Amusements, 43 F.3d

___________________

at 743 (ambiguous comments standing alone are insufficient to

raise an

have

inference of racial

not offered a

animus).

The

defendants here

plausible alternative interpretation for

comments

which

in

context

suggest

discrimination.

See
___

Alexis v. McDonald's Restaurants, Inc., 67 F.3d 341, 348 (1st

______
____________________________

Cir. 1995) ("[A] rational factfinder would be hard-pressed to

glean

intent],

more

plausible

particularly

alternative

inference

since

interpretation

[than

[defendant]

supported

-3636

discriminatory

has

by

tendered

the

no

present

record.").

The comments were made by a person whose actions

allegedly contributed to the plaintiff's injury.

Sergeant Orta's statements are very troubling.

hostility

to

enforcing

the

certainly be understood as

which

women,

assume that

men

including

"classifications may

create

or

beating

perpetuate

inferiority of women."

at

he was

law

them.13

the

legal,

as

could

stereotypes

certain prerogatives

be used,

towards

Gender-based

they once

social,

and

were,

to

economic

United States v. Virginia, 116 S. Ct.

_____________
________

2275 (citation omitted).

defendant here,

violence

arising from archaic

enjoy

not

domestic

His

Although Sergeant Orta is not a

a supervisor

and his

attitudes are

____________________

13.

"The Anglo-American common law originally

provided that

a husband, as master of his household, could subject his wife

to corporal

punishment or 'chastisement'

not inflict permanent injury upon her."

so long as

he did

Siegel, "The Rule of

____________

Love": Wife Beating as Prerogative and Privacy, 105 Yale L.J.

______________________________________________
at

2118.

This "right"

Blackstone's

of

Commentaries

chastisement
in

the eighteenth

William Blackstone, Commentaries *444.

____________
a court for protection through
The doctrine of

by

century.

A wife could turn

a writ of supplicavit.

chastisement was met with

was not universally accepted in American

Tapping

was recognized

to

Id.
___

some disfavor and

legal culture.

See
___

Reeve, The Law of Baron and Femme; of Guardian and

_____________________________________________

Child; of Master and Servant; and of the Power of Courts of

_____________________________________________________________
Chancery 65
________

(New Haven, Oliver Steele

1816); Siegel, supra,

_____

at 2124.
By the late nineteenth

century, around the time of

the enactment of the Equal Protection Clause, the doctrine of

the

right

of

America.

chastisement

The

Supreme

expressly repudiated
McAfee,
______
doctrine

108
that

Mass.

had fallen

Judicial

into

Court

of

the doctrine in 1871.

458

same year.

(1871).

Alabama

Fulgham
_______

v.

disrepute

in

Massachusetts
Commonwealth v.
____________
repudiated

State, 46
_____

the

Ala. 143

(1871).

-3737

evidence

of whether

the failure

to enforce

precinct level was based on discrimination.

Law 54

at the

Law 54

precinct

in

everyone in

was enforced sporadically, at

1991.

Officer

his police detachment

complaints.

Asked

officers did

not want to take

"Well, they

Flores

what

best, in the

testified that

almost

"shied away from"

Law 54

happened to

the victims

when the

complaints, Flores responded,

had to continue complaining."

Flores testified

that proper Law 54 procedures were followed only about 75% of

the

time, and then just by certain officers.

Flores's

direct

domestic violence

in

supervisor, stated

despite Law

54,

complaints were not given great importance

1991 and were commonly

Services" reports.

that,

Sergeant Orta,

handled in the

There would

station as "Other

certainly be enough facts to

raise a reasonable inference that the failure to

enforce Law

54 at the precinct level was based on gender discrimination.

That, however,

whether Officer

of

discriminatory

It was

take Soto's complaint

evidence to

intent

not within Flores's

or to

suggest that

evidence that

Flores himself attempted

54 at

all,

discrimination.

much less

-3838

for

talking

to

responsibilities to

Flores's motivation in

based on gender

Law

in

arrest Rodriguez.

Rodriguez was

of

question as to

Flores, who is the defendant here, acted out

gender-based

Rodriguez.

does not answer the

We find

no

talking to

There

is no

to avoid enforcement

discriminatory reasons.

Flores, despite

get some

the lack of official

training for himself.

substation, Flores

responsibility

Flores described

When Soto came to the Palmer

called in the two

it was to take

training, undertook to

patrol officers, whose

the complaint and

Soto's complaint as

a Law 54

act on it.

complaint to

the patrol officers, as he did to Sergeant Orta.

evidence

because

that

of

Flores

intervened and

gender-discriminatory

relationship between the two

talked

motive;

There is no

to

Rodriguez

rather,

the

men provides a strong inference

that Flores believed his friendship could

resolve the

does

not

matter.

turn

provide a basis to

Sadly, he was wrong.

his

action into

one

That he was wrong

motivated

by

gender

discrimination.

2. Police Superintendent Betancourt-Lebron

__________________________________________

Plaintiff

asserts

that

Betancourt-Lebron,

the

superintendant of police for the Commonwealth of Puerto Rico,

should

adequate

be

held responsible

training,

and

gender- discriminatory

because

because

bias.14

he

failed to

that failure

This claim

was

provide

due

to

is based largely

____________________

14.

We will assume

was

evidence of a causal

the events at

arguendo, but do not decide,

link between lack

the precinct.

The street

that there

of training and

level officers

--

Flores and Carrasquillo -- both

testified that they had

not

received formal training on Law 54, and were not even given a
copy of the law.

Both officers were left with understandings

of the law that were flatly wrong.

that the victim had
and that

Orta

to specifically request a Law

the victim had to

not wish to

proceed to

also testified

Both erroneously believed

sign a closed report

get a restraining

that he

did not

order.

54 order,
if she did
Sergeant

receive comprehensive

-3939

on Betancourt-Lebron's public statements.

For example, when

Law 54

had

been in

effect

for eight

months,

Betancourt-

Lebron, was quoted in the press as saying:

don't believe that [Law 54] is solving

anything because it
fights

has not lessened the

between husbands

the contrary, there

and wives.

On

is evidence that

it

continues to increase.

He

went on

treated

to

say that

with

laws

psychologists

and

disagreement

with the

conduct

intent.

is not,

in

that

domestic

punish the

social

aggressors,

workers.

law's

This

decision to

itself, a

Plaintiff posits

violence should

that

but

be

with

statement

criminalize

statement of

the

not

of

such

discriminatory

statement in

context

should be read as discriminatory.

Soto's expert witness,

that, because

one of the

Mercedes Rodriguez,

most dramatic changes

opined

achieved by

Law

54 was

the criminalization

statement by

of domestic

Betancourt-Lebron was

violence, this

"one of the

most severe

blows, that a public official of [his] stature" could give to

the law.

the

Rodriguez

part

of the

called these statements "a

institutional leadership."

position of the Women's

public

statements

attitudes

deviation on

was the

Affairs Commission that Betancourt's

"would promote

toward women

It

victims and

rank and

file's negative

their rights

under Law

____________________

training in Law 54

until 1993, two years after

at issue here.

-4040

the incident

54."

to

The

Superintendent's public statements, in

law

he

disseminated.

and

the

was

charged

with

It is reasonable

Women's

Affairs

enforcing,

to infer, as

Commission

opposition

were

Soto's expert

suggest,

influenced many of the rank and file in the police.

the statements

had influence does

not mean

widely

that

they

But that

that they

were

Betancourt-Lebron acknowledged

that

motivated by discrimination.

Additionally,

he

foresaw

that

police

implementing

Law 54

other

and because

laws,

officers

because

would

have

its procedures

"of

active

members of the Force toward the law."

problems

differed

from

resistance from

some

There

is no evidence,

however, that he was aware of discriminatory attitudes at the

Rio

Grande precinct,

the face

of such

knowledge, he failed to act to curb those attitudes.

Nor is

there

much less

that, in

any comparative evidence as

Betancourt-Lebron implemented

effect.

Evidence

that

Law

to what, if any, training

when other new

54,

which

laws went into

was

specifically

intended to assist abused women, was handled differently than

other new

support

major law enforcement initiatives

an

inference of

discriminatory

could, perhaps,

intent.

But

the

record is devoid of such evidence.

Somewhat

intent

is

Commission.

his

more

probative

relationship

with

of

the

Betancourt-Lebron's

Women's

Betancourt-Lebron declined to meet,

Affairs

for a year

-4141

after

approval

of

Law

54,

with

the

Women's

Affairs

Commission.

Law

implementation

enforcement

54

directs the

agencies to victims.

the

been

evaluate

with

year

the

as to domestic

virtually

See P.R. Laws ann. tit. 8,

___

The initial report

first

"Coordination

personnel

to

of the law and to promote the response of law

651 (Supp. 1995).

covering

Commission

of

Police

of the Commission,

implementation,

of

Puerto

violence problems

impossible."

In

fact,

Rico

noted:

to

and Law

numerous phone calls or letters

from

Director

concerned

Executive

about

the

of the

Commission,

Police Department's

54 has

Betancourt-Lebron

returned none of the

the

train

apparent

to him

who

was

lack of

interest in implementing the law.

In

the

end,

this

evidence,

while

painting

an

unwholesome

standards

picture,

imposed

is

by

not

the

enough

Supreme

discriminatory intent in equal

to

meet

Court

the

for

protection claims.

says, the intent to be shown must be more than an

of

consequences."

Feeney, 442
________

U.S. at 279.

strict

showing

As Feeney
______

"awareness

The defendant

must have "selected . . . a course of action at least in part

'because

of' not merely 'in spite of' its adverse effects on

an identifiable

with Law

group."

54 and a

Commission, while

Id.
___

An

expression of disagreement

failure to meet with

some evidence of

-4242

the Women's Affairs

discriminatory intent on

the

part

of Betancourt-Lebron,

is too

slender a

stalk on

which to rest.

Thus, we

of

her

against

conclude that plaintiff

difficult burden

these

constitutional

defendants

tort.

In

of

has fallen short

proving discriminatory

as

required

so saying,

we

to

intent

establish

do not

of course

condone the actions and failures of duties we have described.

The

deaths of children,

which may have

followed from risks

arguably created by the actions of public officials, are very

serious

actionable

matters.

Whether

this

under Puerto Rican law

deplorable

we leave, as

scenario

is

we must, to

others.

Accordingly,

plaintiff is affirmed.
________

the grant of summary judgment against

-4343

TORRUELLA,
TORRUELLA,

Chief Judge (concurring). I concur with

Chief Judge (concurring).
___________

the majority's opinion.

Court should

and

am of the view that

be affirmed for substantially

grounds as

Court.

are stated

in the

the District

the same reasons

opinion of

the District

-4444