"Shall Arrest" Is Still Discretionary; Officers Not Constitutionally Liable For Ex's Murder

HUDSON v. HUDSON, USCA-6 No. 05-6575, 2007 U.S.App. LEXIS 1705, appeal from USDC-TNWD, before Chief Judge Boggs, Circuit Judge Cook, and USDJ-OHSD Rose sitting by designation, opinion by Cook, filed 26 Jan 2007.

LONG STORY SHORT: Even though the applicable statute required arrest of domestic protective order violators, and even though such an arrest would have prevented the subject from murdering his ex and her friends, officers were not liable under the Constitution to the murder victim's surviving child. Binding in KY, MI, OH, TN.

FACTS: Jennifer Braddock's boyfriend, James Hudson, became abusive and Ms. Braddock obtained a protective order. While it was in effect, Mr. Hudson repeatedly violated it, but for two years, the Memphis Police Department did not arrest him for these violations. One day, Mr. Hudson's sister Susan drove him to Ms. Braddock's home, where he broke in, murdered her and two of her friends, then killed himself.

PROCEDURE: Justin Hudson, minor son of Mr. Hudson and Ms. Braddock, sued Susan Hudson, the Memphis Police Department, and certain MPD officers for violating his Fourteenth Amendment rights to due process, and for relief under various Tennessee state causes of action. Two officers moved to dismiss the complaint on grounds of qualified immunity, arguing that they had discretion to arrest Mr. Hudson or not, and discretionary functions cannot trigger constitutional liability. The U.S. District Court for the Western District of Tennessee ruled that since the applicable Tennessee statute provided that officers "shall arrest," with or without a warrant, anyone whom an "officer has reasonable cause to believe has violated or is in violation of an order for protection," a previous Tennessee Supreme Court decision had put the officers on notice that they had to arrest such subjects or be liable for not doing so. QUALIFIED IMMUNITY DENIED. The two officers immediately appealed to the U.S. Court of Appeals for the Sixth Circuit.

DECISION: First, qualified immunity is available only to those government officials performing discretionary functions. Though the "shall arrest" wording of the state statute appeared to take discretion away from officers and thereby make the arrest of protection order violators a mere ministerial act, the Sixth Circuit ruled that no state statute could overrule the Fourth Amendment's requirement of probable cause to arrest. In light of this principle, the trial court's cited Tennessee Supreme Court case, which really addressed government liability under Tennessee tort law, could not abrogate the Fourth Amendment. Also, the "shall arrest" statute went on to require "reasonable cause" for arrest, necessarily delegating some discretion to officers.

Once the discretionary nature of the complained-of actions is clear, qualified immunity protects officers if they either did not violate any constitutional right or if the right in question was not clearly established at the time of the complained-of actions. Unless either the state created the danger or had some special relationship with the victim, no act of private violence amounts to a state denial of Fourteenth Amendment procedural or substantive due process rights. Here, the state did not create the danger; the state only failed to do something right instead of affirmatively doing something wrong. Neither does a protective order create a special relationship with the state, nor does it establish for Fourteenth Amendment purposes a property interest in being protected, because arresting a violator is only incidental to the police function of arresting offenders in general.

Even taking the complaint as true and liberally construing it in Plaintiff's favor, and despite the tragic nature of the facts, the appellant officers simply did not violate any constitutional right and could not be sued. DENIAL OF QUALIFIED IMMUNITY REVERSED.

EDITORIAL: The real world of enforcing the laws against domestic violence is not as simple and easy as the victims' advocates would have you think. Remember, in a motion to dismiss like this one, we have to work with the facts as the plaintiff wants you to think they are, and the defense has not had its turn yet. It could be that the plaintiff is exactly right--after all, I'm always exactly right in everything I write into a lawsuit!--or it could be that the Memphis PD has a very mean town to deal with and cannot give every case the attention it ought to have done in hindsight. Personally, one of my favorite aspects of LE work is the satisfaction of putting bullies and batterers in their place. However, MOST batterers don't kill their victims and it's hard to predict which ones WILL do so. If batterers were that predictable, we could concentrate just on the worst ones. What's more, sometimes one officer on a domestic call will find the complaining witness credible, but another officer will find the alleged batterer credible ("I didn't do NOTHIN, I cain't be-LEEVE all them lies my wife and younguns tell"), and the officer who wants to arrest a batterer might get outvoted. Don't ask me how I know.

Still and all, I sure hope the great city of Memphis notices that it's still probably going to be liable under state law, and writes settlement checks totaling twice the size of Graceland to that poor kid and the estates of his mother's friends. And I wonder what happened to the murderer's sister, because if the complaint is true, she is as guilty as he. Then again, if she knew he was going to kill himself along with whoever else was handy, she wouldn't have driven him over there.