DOMESTIC VIOLENCE RESTRAINING ORDERS AND POTENTIAL LIABILITY OF THE SERVING OFFICER

Every state has enacted laws allowing for some form of restraining order to prevent or stop domestic violence. Unfortunately, the delivery of an order can be a very dangerous moment. When an abuser learns that he or she no longer has control over the victim, he or she may respond with even greater violence. A recent case from Washington discusses whether an officer delivering a restraining order may be held liable if tragedy results.

 

In the case in question, the victim in a domestically violent relationship obtained an antiharassment order against her partner. (In Washington, this is different from a domestic violence restraining order; among other difference, the restrained person does not have to immediately vacate, but instead is allowed time to collect and remove belongings.) This order included a requirement that the partner stay at least 500 feet from her house. Restraining orders do not come into effect until delivered to the restrained person, and in this case, the victim had the city police perform the delivery. Her request for service included warnings of a history of assault and predicted that the partner would react violently. It also included a request for an interpreter because of the partner’s limited English skills.

 

The serving officer did not obtain an interpreter. More importantly, he did not thoroughly read the order. When he arrived at the house, he saw that both the victim and the partner were present. He delivered the order to the partner, but did not tell him to leave. He also left the victim to explain the order. Later that day, the partner fatally stabbed the victim.

 

The victim’s daughters sued the city for negligence resulting in the victim’s death. The city argued that it had no obligation to protect the victim.

 

The Washington Supreme Court ruled that the city was subject to two mandates. First, state statutes required it to deliver the order. If it did so negligently, it could be held liable. Second, the officer’s actions in not removing the partner from the house when he delivered the order, despite the order requiring him not to stay within 500 feet of the house, in a situation of domestic violence in which the service forms warned of the risk of a violent reaction, created a dangerous situation that could be foreseen to lead to a violent attack. Because the officer created the risk, he was obligated to take reasonable steps to prevent it.

 

Oregon has a similar requirement that sheriffs deliver domestic violence orders when asked, and I think it is likely that the courts in Oregon would similarly rule that a sheriff who leaves a victim with an abuser when an order is served could be sued. The courts have already ruled that officers can be sued for failing to arrest a person under a mandatory-arrest law.

 

If you are going to seek a domestic violence order and are concerned that the abuser is likely to be violent, be ready to talk to a lawyer or domestic violence counselor about immediate plans for safety after the order is signed. This is a dangerous time, and just as you may be reasserting your autonomy, you may need help ensuring that you have planned for your safety.

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