                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-13-2007

Burella v. Philadelphia
Precedential or Non-Precedential: Precedential

Docket No. 04-1157




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                                                PRECEDENTIAL


           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                       Nos. 04-1157/2495


  JILL BURELLA, individually and as parent and guardian of
     BETH ANN BURELLA, DANIELLE BURELLA, and
                NICHOLAS BURELLA

                                v.

 CITY OF PHILADELPHIA; ROBERT REAMER, individually
   and as a police officer of the City of Philadelphia; WARREN
     ZALUT; CHARLES BLOOM, individually and as a police
    officer of the City of Philadelphia; FRANCIS GRAMLICH,
  individually and as a police officer of the City of Philadelphia;
 JOHN DOE I, individually and as a police officer of the City of
Philadelphia; JOHN DOE II, individually and as a police officer
of the City of Philadelphia; JOHN DOE III, individually and as a
     police officer of the City of Philadelphia; JOHN DOE IV,
   individually and as a police officer of the City of Philadelphia

       Robert Reamer, Charles Bloom, Francis Gramlich,
                                          Appellants.


        On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                    (D.C. No. 00-cv-00884)
         District Judge: Honorable Herbert J. Hutton


                   Argued November 2, 2006

    Before: AMBRO, FUENTES and SMITH, Circuit Judges

                  (Filed: September 13, 2007 )
Ralph J. Kelly (Argued)
McShea & Tecce
Bell Atlantic Tower
1717 Arch Street, 28th floor
Philadelphia, PA 19103

       Counsel for Appellees


Craig R. Gottlieb (Argued)
City of Philadelphia Law Department
1515 Arch Street
One Parkway
Philadelphia, PA 19102

       Counsel for Appellants




                     OPINION OF THE COURT


FUENTES, Circuit Judge.

        In January 1999, George Burella, a ten-year veteran of the
Philadelphia Police Department, shot and seriously injured his
wife, Jill Burella, and then shot and killed himself.1 George
Burella had emotionally and physically abused Jill Burella for years
prior to the shooting. Although she reported numerous incidents
of abuse to the police over the years, obtained several restraining
orders just days before the shooting, and told police that her
husband continued threatening her despite the orders, police failed
to arrest him. This appeal concerns whether the police officers had



1
 At the time of the shooting, Jill and George Burella had three
young children—an eleven-year-old daughter, Bethann, and six-
year-old twins, Nicholas and Danielle. Jill Burella brings this
lawsuit individually and on her children’s behalf.

                                 2
a constitutional obligation to protect Jill Burella from her
husband’s abuse.        Despite our grave concerns about the
Philadelphia Police Department’s alleged conduct in this case, we
hold that the officers did not have such an obligation. Accordingly,
we will reverse the District Court’s denial of qualified immunity
and remand for further proceedings consistent with this opinion.

I.     Background 2

        We set forth in some detail the long and protracted history
of physical and emotional abuse in this case because it is central to
Jill Burella’s claim that Philadelphia police officers knew about the
abuse, but nevertheless failed to act, thereby violating her due
process and equal protection rights.

       The abuse began around February 1996, when George
Burella was convicted of disorderly conduct for stalking his wife
at her workplace and assaulting her male co-worker who he
suspected was having an affair with her. One month later, in the
face of marital troubles and a severe gambling problem, George
Burella attempted suicide. He survived and was admitted to a
psychiatric hospital where he was diagnosed with depression.

        After her husband was released from the hospital, Jill
Burella contacted the Philadelphia Police Department’s Employee
Assistance Program (“EAP”), which is designed to assist officers
in obtaining help with personal problems. The EAP notified the
City Medical Department, which placed George Burella on
restricted duty and referred him to City doctors for psychological
treatment. The doctors eventually cleared him to return to full
active duty in August 1996, provided he be evaluated every four
months for a period of one year. Jill Burella alleges that the City



2
  “In interlocutory appeals from denials of summary judgment on
the basis of qualified immunity, we must accept the District Court’s
set of facts as given.” Walker v. Horn, 286 F.3d 705, 707 (3d Cir.
2002). The District Court’s opinion is set forth in Burella v. City
of Philadelphia, No. Civ. 00-884, 2003 WL 23469295 (E.D. Pa.
Dec. 17, 2003).

                                 3
did not follow up.

       George Burella’s violence towards his wife continued over
the next several years and, in early June 1998, she contacted the
Philadelphia Police Department’s Internal Affairs Division to
report the abuse. Internal Affairs referred the matter to the EAP,
which assigned George Burella a peer counselor.

        Later that month, on June 26, 1998, George Burella
assaulted his wife and another man at a local bar. Witnesses called
911, but George Burella left the bar before police officers arrived.
When he got home, he phoned his wife and threatened to shoot
their son Nicholas if she did not immediately return to the house.
After calling 911, Jill Burella rushed home, where her husband,
who was armed with a gun, threatened to shoot her. Before the
matter worsened, police officers arrived. George Burella initially
refused the officers’ order to surrender, but did so after the officer
in charge agreed to report the incident as a domestic disturbance,
rather than a more serious offense. Officer Robert Reamer, who is
named as a defendant in this lawsuit, was one of the officers who
arrived at the scene.

       After the police officers left, George Burella began beating
his wife on their front lawn. Her parents arrived and took her to
their house, but George Burella followed them there. Once at her
parents’ house, she tried to call 911, but her husband wrestled the
phone from her and told the operator that he was a police officer
and that everything was under control. As a result, the operator did
not instruct police to respond to the situation. Three days later, Jill
Burella contacted the EAP to report the incident, but because the
EAP failed to notify Internal Affairs, the incident was never
investigated.

       In July 1998, George Burella called his wife at work in
Upper Southampton Township and threatened to kill her. After
Upper Southampton police officers arrived at her workplace, she
received several more threatening phone calls from her husband.
The officers called Captain Charles Bloom, George Burella’s
commanding officer, and a defendant in this lawsuit, to inform him
about the incident.

                                  4
        Captain Bloom became directly involved in the situation on
August 13, 1998, when Northampton police officers arrested
George Burella for assaulting Jill Burella in Bucks County. The
officers released George Burella into the custody of Captain
Bloom, who escorted him home. Three days later, on August 16,
George Burella called his wife while she was visiting his parents
with the children and again threatened to kill her. When he went
to his parents’ house, Northampton police officers responding to an
emergency call escorted him to his car, unloaded his firearm, and
placed it in the trunk of the car. Shortly thereafter, officers found
him driving in the vicinity of the house with his gun re-loaded and
placed on the backseat of his car. Officers took him to a local
hospital, but he was released shortly thereafter.3 After being
notified of the incident, Captain Bloom ordered George Burella to
submit to a psychiatric evaluation.

        Later that month, George Burella admitted himself to a
psychiatric hospital, but left after four days of treatment. Several
days later, City psychologists examined him and concluded that he
should be monitored for the next two years. After one follow-up
appointment with City doctors in September 1998, he did not return
for treatment.

        On December 24, 1998, George Burella again assaulted his
wife, this time while she was visiting a friend. When Philadelphia
police officers arrived, they allowed him to leave with the couple’s
youngest daughter, and then took Jill Burella and her two other
children home, where her husband resumed beating her.

        Over the course of the next few weeks, Jill Burella obtained
the three protection from abuse orders relevant to this lawsuit. On


3
  The District Court’s opinion states that Jill Burella went with her
father-in-law to obtain an order of protection after she received the
threatening phone calls on August 16, 1998. Although the record
is unclear, it seems that George Burella’s father and half-sister may
have also obtained orders of protection, and that officers served
him with all three orders of protection at the hospital. (See App. at
748-59.)

                                 5
January 2, 1999, she obtained an emergency ex parte protection
from abuse order from the Philadelphia Court of Common Pleas
that prohibited her husband from “abusing, harassing, stalking
and/or threatening” her, and from “living at, entering, attempting
to enter or visiting” the couple’s home. The order further provided
that officers “shall . . . arrest the defendant if he/she fails to comply
with this Order.” (App. at 110-11.) The next day, Officer Reamer
served the order on George Burella, who, according to Jill Burella,
immediately violated it by shouting at and threatening her. Despite
witnessing the alleged violation, Officer Reamer permitted George
Burella to enter the house.

        The next day, Jill Burella obtained another temporary
protection from abuse order, which essentially repeated the terms
set forth in the January 2 order. In addition, the court awarded her
temporary custody of the couple’s three children, prohibited
George Burella from having “any contact” with her, and ordered
him to relinquish all guns other than his service weapon, which he
was required to turn over to his commanding officer at the end of
every shift. The order also stated that “[t]his Order shall be
enforced by any law enforcement agency in a county where a
violation of this Order occurs.” (App. at 121-22.)

       Later that day, Jill Burella called 911 after she received
threatening phone calls from her husband. After officers arrived,
and while in their presence, she received several more calls from
her husband. The officers told her they could not do anything
unless her husband was physically present.4 When Jill Burella
called the police the next day, again they told her that nothing
could be done unless her husband was physically present at her
house.

       On January 8, 1999, Jill Burella obtained a final order of
protection.5 Four days later, following an appointment with a

4
 It is unclear, according to the District Court, whether the officers
knew that there was a protection from abuse order in effect.
5
  The District Court noted that the provision in the final order
requiring Officer Burella to relinquish his weapons was crossed

                                   6
psychiatrist at the City Medical Department, George Burella went
to the house he formerly shared with his wife and shot her in the
chest. He then immediately shot and killed himself. Although she
suffered serious injuries, Jill Burella survived the shooting.

        In February 2000, Jill Burella filed a complaint in
Pennsylvania state court against Officer Reamer, Captain Bloom,
and Captain Bloom’s successor, Francis Gramlich, along with the
City of Philadelphia and Dr. Warren Zalut, the City psychiatrist
who saw George Burella on the day of the shooting. After the case
was removed to federal district court, she filed an eight-count
amended complaint asserting various federal constitutional and
state law claims. The officers and the City moved for summary
judgment on all counts asserted against them.6 This appeal
concerns solely the District Court’s summary judgment ruling that
the officers are not entitled to qualified immunity with respect to
Jill Burella’s due process (Count I) and equal protection (Count IV)
claims.7

II.    Jurisdiction and Standard of Review

        The District Court had subject matter jurisdiction over
plaintiff’s federal constitutional claims pursuant to 28 U.S.C. §§
1331 and 1343, and supplemental jurisdiction over her state law
claims pursuant to § 1367(a). Under the collateral order doctrine,


out. Burella, 2003 WL 23469295, at *8 n.6.
6
 Count VIII of the amended complaint set forth a negligence claim
against Dr. Zalut, who was not a party to the summary judgment
motion. Burella, 2003 WL 23469295, at *3 n.2.
7
      The District Court denied the officers’ motion for
reconsideration. We note that in its summary judgment ruling, the
District Court also allowed Jill Burella to proceed against the
officers on a state equal protection claim and a claim for intentional
infliction of emotional distress. Burella, 2003 WL 23469295, at
*13-14. In addition, the District Court denied the City of
Philadelphia summary judgment on all claims asserted against it.
Id. at *9-12.

                                  7
we have appellate jurisdiction over an interlocutory appeal of a
district court’s order denying qualified immunity to the extent the
denial turns on issues of law. See Yarris v. County of Delaware,
465 F.3d 129, 134 (3d Cir. 2006). We exercise plenary review over
legal issues related to qualified immunity. Id.

III.      Legal Framework

        “Section 1983, enacted as part of the Civil Rights Act of
1871, establishes ‘a federal remedy against a person who, acting
under color of state law, deprives another of constitutional
rights.’” 8 McCurdy v. Dodd, 352 F.3d 820, 825 (3d Cir. 2003)
(quoting City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 258
(1981)). In order to establish a prima facie case under § 1983, a
plaintiff must demonstrate that: “(1) a person deprived [her] of a
federal right; and (2) the person who deprived [her] of that right
acted under state or territorial law.” Groman v. Twp. of
Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). The parties agree that
the officers are state actors for purposes of this § 1983 lawsuit, but
dispute whether Jill Burella was deprived of a federal constitutional
right.

        Even when a federal right is implicated in a § 1983 action,
a state actor alleged to have violated that right may nevertheless be
entitled to qualified immunity from suit. “Qualified immunity
shields state officials from suit when their conduct ‘does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Yarris, 465 F.3d at 140

8
    Section 1983 states:
         Every person who, under color of any statute,
         ordinance, regulation, custom, or usage, of any State
         . . . subjects, or causes to be subjected, any citizen of
         the United States . . . to the deprivation of any rights,
         privileges, or immunities secured by the Constitution
         and laws, shall be liable to the party injured in an
         action at law, suit in equity, or other proper
         proceeding for redress . . . .
42 U.S.C. § 1983 (2003).

                                    8
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus,
in order to decide whether a defendant is entitled to qualified
immunity, a court must first determine if, assuming the facts
alleged in the complaint are true, defendant’s conduct violated a
constitutional or statutory right and, if so, whether the right
allegedly violated was “clearly established” at the time of the
violation. Id. If the court concludes that the defendant’s conduct
violated a clearly established right, it must deny the defendant the
protection afforded by qualified immunity.9 Id.

IV.    Analysis

       The officers contend that Jill Burella did not have a
constitutional right to police protection from her husband’s abuse
and, even if she did, that such a right was not clearly established at
the time of the alleged violation. Therefore, the officers argue, the
District Court erred when it denied them qualified immunity with
respect to her due process claim.10 In addition, they argue that the
District Court erred in ruling that she had a cognizable federal
equal protection claim sufficient to overcome their qualified
immunity. We address the District Court’s due process and equal

9
  The Supreme Court has explained that the doctrine of qualified
immunity is an attempt to balance “not only the importance of a
damages remedy to protect the rights of citizens, but also the need
to protect officials who are required to exercise their discretion and
the related public interest in encouraging the vigorous exercise of
official authority.” Harlow, 457 U.S. at 807 (citation and internal
quotation marks omitted).
10
   The District Court held that Captain Bloom (but not Officer
Reamer or Captain Gramlich) was entitled to qualified immunity
from Jill Burella’s due process claim because Jill Burella did not
allege any facts “to show that Captain Bloom failed to protect [her]
once the first protection from abuse order was issued on January 2,
1999.” Burella, 2003 WL 23469295, at *9. For sake of
convenience, we refer to “the officers” collectively throughout our
discussion, with the understanding that only Officer Reamer and
Captain Gramlich challenge the District Court’s due process
qualified immunity ruling.

                                  9
protection rulings in turn.

A.     Due Process

       Although the District Court ruled that Jill Burella did not
have a viable substantive due process claim, it held that she had a
procedural due process right to police protection based on the
Pennsylvania Protection from Abuse Act and the protection from
abuse orders issued by the Pennsylvania Court of Common Pleas.
For the reasons that follow, we do not agree that Jill Burella had a
constitutional right to police protection.

1)      Substantive Due Process

        The District Court correctly determined that DeShaney v.
Winnebago County Department of Social Services, 489 U.S. 189
(1989), forecloses Jill Burella from asserting a substantive due
process claim. The victim in DeShaney, Joshua DeShaney, was
brutally and repeatedly beaten by his father. County social workers
were aware of the abuse, took some steps to intervene, but decided
not to permanently remove Joshua from his father’s custody. After
suffering permanent brain damage at the age of four as a result of
the abuse, Joshua and his mother, as guardian ad litem, brought a
§ 1983 action alleging that county social workers “deprived Joshua
of his liberty without due process of law . . . by failing to intervene
to protect him against a risk of violence at his father’s hands of
which they knew or should have known.” Id. at 193.

        The Supreme Court rejected plaintiffs’ substantive due
process argument, explaining that “nothing in the language of the
Due Process Clause itself requires the State to protect the life,
liberty, and property of its citizens against invasion by private
actors.” Rather, the Court observed, “[t]he Clause is phrased as a
limitation on the State’s power to act, not as a guarantee of certain
minimal levels of safety and security.” Id. at 195. Therefore, the
Court reasoned, “[i]f the Due Process Clause does not require the
State to provide its citizens with particular protective services, it
follows that the State cannot be held liable under the Clause for
injuries that could have been averted had it chosen to provide
them.” Id. at 196-97.

                                  10
        The Supreme Court also rejected plaintiffs’ argument that
once the State took steps to intervene in the abuse, it was obligated
to do so in a reasonably competent manner. The Court explained
that “[t]he affirmative duty to protect arises not from the State’s
knowledge of the individual’s predicament or from its expressions
of intent to help him, but from the limitation which it has imposed
on his freedom to act on his own behalf.”
Id. at 200. In other words:

        it is the State’s affirmative act of restraining the
        individual’s freedom to act on his own
        behalf—through incarceration, institutionalization,
        or other similar restraint of personal liberty—which
        is the ‘deprivation of liberty’ triggering the
        protections of the Due Process Clause, not its failure
        to protect his liberty interests against harms inflicted
        by other means.

Id.

       Recognizing that Jill Burella does not have a viable
substantive due process claim under DeShaney, the District Court
turned to whether she had a procedural due process right to police
protection.

2)      Procedural Due Process

        The District Court held that Jill Burella had a procedural due
process claim under Board of Regents v. Roth, 408 U.S. 564
(1972). In Roth, plaintiff was a non-tenured professor at a state
university who was not rehired after his term of employment
expired. Plaintiff argued that “the failure of University officials to
give him notice of any reason for nonretention and an opportunity
for a hearing violated his right to procedural due process of law.”
Id. at 569.

        In rejecting plaintiff’s argument, the Supreme Court stated
that:



                                  11
       The requirements of procedural due process apply
       only to the deprivation of interests encompassed by
       the Fourteenth Amendment’s protection of liberty
       and property.       When protected interests are
       implicated, the right to some kind of prior hearing is
       paramount. But the range of interests protected by
       procedural due process is not infinite.

Id. at 569-70 (footnote omitted). With respect to how such
interests are created, the Court explained: “Property interests are
not created by the Constitution. Rather, they are created and their
dimensions are defined by existing rules or understandings that
stem from an independent source such as state law-rules or
understandings that secure certain benefits and that support claims
of entitlement to those benefits.” Id. at 577.

         Thus, the Court observed, it had previously recognized the
existence of a constitutionally protected property interest in cases
involving, for example, “a person receiving welfare benefits under
statutory and administrative standards defining eligibility for
them,” id. at 576 (citing Goldberg v. Kelly, 397 U.S. 254 (1970);
Flemming v. Nestor, 363 U.S. 603 (1960)); “a public college
professor dismissed from an office held under tenure provisions,”
id. (citing Slochower v. Bd. of Higher Educ., 350 U.S. 551 (1956));
and “college professors and staff members dismissed during the
terms of their contracts,” id. at 577 (citing Wieman v. Updegraff,
344 U.S. 183 (1952)).

       The Supreme Court concluded that the plaintiff in Roth
could not point to any source that would support his claim that he
had a property interest in continued employment:

       [T]he terms of the respondent’s appointment secured
       absolutely no interest in re-employment for the next
       year. They supported absolutely no possible claim of
       entitlement to re-employment. Nor, significantly,
       was there any state statute or University rule or
       policy that secured his interest in re-employment or
       that created any legitimate claim to it. In these
       circumstances, the respondent surely had an abstract

                                12
       concern in being rehired, but he did not have a
       property interest sufficient to require the University
       authorities to give him a hearing when they declined
       to renew his contract of employment.

Id. at 578 (footnote omitted).

        Recognizing the absence of any Third Circuit procedural
due process cases squarely applicable to the facts presented in this
case, the District Court relied principally on Coffman v. Wilson
Police Department, 739 F. Supp. 257 (E.D. Pa. 1990), another
tragic domestic violence case in which the police failed to enforce
a protection from abuse order obtained by the victim pursuant to
the Pennsylvania Protection from Abuse Act. The district court
held there that the victim had a constitutionally protected
entitlement to police protection because, in the court’s view, the
order required officers to arrest the abuser:

       An order of court, served upon the Department, that
       states that the Department shall enforce the order is
       unambiguous. The word “shall” is mandatory, not
       precatory, and its use in a simple declarative
       sentence brooks no contrary interpretation.
       Although, in the context of Roth, property interests
       generally arise from sources other than judicial
       orders, it is in no way remarkable that an order could
       create such an entitlement.

Id. at 264.

     In this case, the District Court found the reasoning in
Coffman persuasive:

       [T]he Philadelphia Court of Common Pleas issued
       protection from abuse orders pursuant to the
       [Pennsylvania Protection from Abuse Act] on behalf
       of Jill Burella. The orders, issued on January 2, 4,
       and 8, 1999, were each served on Officer George
       Burella by the Philadelphia Police Department.
       According to the reasoning set forth in Coffman

                                 13
       under very similar facts, the [protection from abuse]
       orders alone may be sufficient to afford [Jill Burella]
       an entitlement to police protection from her husband.

Burella, 2003 WL 23469295, at *6.

       In addition, in the District Court’s view, changes to the
Pennsylvania Protection from Abuse Act enacted in 1994 further
supported Jill Burella’s procedural due process claim. Where
previously the Act stated that “[a]n arrest for violation of an order
issued pursuant to this chapter may be without warrant upon
probable cause whether or not the violation is committed in the
presence of the police officer,” 23 Pa. Cons. Stat. Ann. § 6113
(1990), in 1994, the Pennsylvania Legislature amended the Act to
provide that “[a] police officer or sheriff shall arrest a defendant
for violating an order issued under this chapter.” 23 Pa. Cons.
Stat. Ann. § 6113(a) (2003) (emphasis added). Thus, in the District
Court’s view, “[u]nder the new language, once the order is
violated, the statute is clear; the police ‘shall arrest.’” Burella, 2003
WL 23469295, at *7. Therefore, the District Court reasoned, the
orders of protection, coupled with the Pennsylvania statute, left
officers without discretion not to arrest George Burella for a
violation and, thereby, conferred on Jill Burella an entitlement to
police enforcement of the orders.

        After the parties briefed this appeal, the Supreme Court
addressed a similar procedural due process claim in Town of Castle
Rock v. Gonzales, 545 U.S. 748 (2005).11 In Castle Rock, the
plaintiff obtained an order of protection that commanded her
husband “not to molest or disturb the peace of [plaintiff] or of any
child and to remain at least 100 yards from the family home at all
times.” Id. at 751 (internal quotation marks omitted). Plaintiff’s
husband abducted the couple’s three young daughters, and despite
plaintiff’s repeated calls for help, police failed to respond. The
husband ultimately murdered the children and was then killed in a


11
  In response to this Court’s instructions, the parties submitted
supplemental briefing and further addressed the case at oral
argument.

                                   14
shoot-out with police. Plaintiff sued the City of Castle Rock, along
with the officers who handled her calls, for failing to enforce the
order of protection.

        Reversing an en banc decision of the United States Court of
Appeals for the Tenth Circuit, the Supreme Court, in a 7-2
decision, rejected the argument that the victim had a
constitutionally protected property interest in police enforcement
of the order of protection.12 The Court began its analysis by
explaining that DeShaney left open the question whether a victim
of a private act of violence may, under certain circumstances, have
a constitutionally cognizable property interest in police protection.
Id. at 755. Turning to the victim’s procedural due process claim,
the Supreme Court first looked at the terms of the order of
protection. A preprinted warning on the back of the order
provided:

       A KNOWING VIOLATION OF A RESTRAINING
       ORDER IS A CRIME . . . A VIOLATION WILL
       ALSO CONSTITUTE CONTEMPT OF COURT.
       YOU MAY BE ARRESTED WITHOUT NOTICE
       IF A LAW ENFORCEMENT OFFICER HAS
       PROBABLE CAUSE TO BELIEVE THAT YOU
       HAVE KNOWINGLY VIOLATED THIS ORDER.

Id. at 752. Additional preprinted text on the back of the order set
forth a “NOTICE TO LAW ENFORCEMENT OFFICIALS”
which stated:

       YOU SHALL USE EVERY REASONABLE


12
   Although the Tenth Circuit held that plaintiff had a procedural
due process right to police enforcement of the order of protection,
it concluded that the officers were entitled to qualified immunity
because the right was not clearly established at the time of the
alleged violation. Gonzales v. City of Castle Rock, 366 F.3d 1093,
1117-18, rev’d, 545 U.S. 748 (2005). Therefore, even under the
Tenth Circuit’s ruling, plaintiff could only have proceeded against
the City on her procedural due process claim.

                                 15
       MEANS TO ENFORCE THIS RESTRAINING
       ORDER. YOU SHALL ARREST, OR, IF AN
       ARREST WOULD BE IMPRACTICAL UNDER
       THE CIRCUMSTANCES, SEEK A WARRANT
       FOR THE ARREST OF THE RESTRAINED
       PERSON WHEN YOU HAVE INFORMATION
       AMOUNTING TO PROBABLE CAUSE THAT
       THE RESTRAINED PERSON HAS VIOLATED
       O R A TTEM P T E D T O V IO L A T E A N Y
       PROVISION OF THIS ORDER . . . .

Id. The Court then observed that the Notice “effectively restated
the [Colorado] statutory provision describing ‘peace officer’s
duties’ related to the crime of violation of a restraining order.” Id.
at 758. That provision stated, in relevant part:

       (a) . . . A peace officer shall use every reasonable
       means to enforce a restraining order.
       (b) A peace officer shall arrest, or, if an arrest would
       be impractical under the circumstances, seek a
       warrant for the arrest of a restrained person when
       the peace officer has information amounting to
       probable cause . . . .
       (c) . . . A peace officer shall enforce a valid
       restraining order whether or not there is a record of
       the restraining order in the registry.

Id. at 758-59 (emphasis added by Castle Rock) (quoting Colo. Rev.
Stat. § 18-6-803.5(3) (1999)). The Supreme Court rejected the
Court of Appeals’ conclusion that

       this statutory provision—especially taken in
       conjunction with a statement from its legislative
       history, and with another statute restricting criminal
       and civil liability f or of f ic e rs m a king
       arrests—established the Colorado Legislature’s clear
       intent to alter the fact that the police were not
       enforcing domestic abuse restraining orders, and
       thus its intent that the recipient of a domestic abuse
       restraining order have an entitlement to its

                                 16
       enforcement.

Id. 759-60 (footnotes and internal quotation marks omitted).

        Focusing on the “deep-rooted nature of law-enforcement
discretion, even in the presence of seemingly mandatory legislative
commands,” id. at 761, the Supreme Court stated that it did “not
believe that these provisions of Colorado law truly made
enforcement of restraining orders mandatory.” Id. at 760. Rather,
the Court observed, “[a] well-established tradition of police
discretion has long coexisted with apparently mandatory arrest
statutes.” Id. Given this tradition, “a true mandate of police action
would require some stronger indication from the Colorado
Legislature than ‘shall use every reasonable means to enforce a
restraining order’ (or even ‘shall arrest . . . or . . . seek a
warrant’).” Id. (emphasis added). As the Court explained:

       It is hard to imagine that a Colorado police officer
       would not have some discretion to determine
       that—despite probable cause to believe a restraining
       order has been violated—the circumstances of the
       violation or the competing duties of that officer or
       his agency counsel decisively against enforcement in
       a particular instance.

Id. at 761. The Court stated, for example, that a police officer
might properly choose “not to enforce a restraining order when the
officer deems a technical violation too immaterial to justify arrest.”
Id. at 762 n.8 (internal quotation marks omitted).

       Moreover, the Court noted, even if the statute could be
construed as having made enforcement of the restraining order
“mandatory,” “that would not necessarily mean that state law gave
respondent an entitlement to enforcement of the mandate.” Id. at
764-65. Rather, “[m]aking the actions of government employees
obligatory can serve various legitimate ends other than the
conferral of a benefit on a specific class of people.” Id. at 765.
The Court observed, for example, that criminal statutes often serve
public rather than private ends, as reflected by the discretion
afforded a Colorado district attorney to pursue criminal prosecution

                                 17
under the statute even if the victim withdraws his or her complaint.
Id. Moreover, “[t]he protected person’s express power to ‘initiate’
civil contempt proceedings contrasts tellingly with the mere ability
to ‘request’ initiation of criminal contempt proceedings—and even
more dramatically with the complete silence about any power to
‘request’ (much less demand) that an arrest be made.” Id. at 766.

       Finally, the Court pointed out that even if it were to
conclude that the Colorado statute created an entitlement to
enforcement of a restraining order, “it is by no means clear that
[such an entitlement] could constitute a ‘property’ interest for
purposes of the Due Process Clause.” Id. That is, “[s]uch a right
would not, of course, resemble any traditional conception of
property.” 13 Id.

        Thus, the Court held, “[i]n light of today’s decision and that
in DeShaney, the benefit that a third party may receive from having
someone else arrested for a crime generally does not trigger
protections under the Due Process clause, neither in its procedural
nor its ‘substantive’ manifestations.” Id. at 768.

        Jill Burella argues that the Supreme Court’s decision in
Castle Rock does not prevent her from succeeding on her
procedural due process claim because the Pennsylvania Protection
from Abuse Act states that police “shall arrest a defendant for
violating an order.” See 23 Pa. Cons. Stat. Ann. § 6113(a)
(emphasis added). It does not, as the Colorado statute provides,
state that police “shall use every reasonable means to enforce” the
restraining order. See Colo. Rev. Stat § 18-6-803.5(3) (emphasis
added). Therefore, she contends, under the Pennsylvania statute,
police officers do not have discretion not to enforce a protection
from abuse order.


13
    “Perhaps most radically,” the Court observed, “the alleged
property interest here arises incidentally, not out of some new
species of government benefit or service, but out of a function that
government actors have always performed—to wit, arresting
people who they have probable cause to believe have committed a
criminal offense.” Id. at 766-67.

                                 18
        As discussed above, however, the Court in Castle Rock
unambiguously stated that absent a “clear indication” of legislative
intent, a statute’s mandatory arrest language should not be read to
strip law enforcement of the discretion they have traditionally had
in deciding whether to make an arrest. 545 U.S. at 761. Although
the Supreme Court did not specify what language would suffice to
strip the police of such discretion, it is clear after Castle Rock that
the phrase “shall arrest” is insufficient. As previously noted, the
Supreme Court explicitly stated that “a true mandate of police
action would require some stronger indication from the Colorado
Legislature than . . . ‘shall arrest.’” Id.

        In addition, we note that Jill Burella’s argument fails to
address the Supreme Court’s observation in Castle Rock that even
if the Colorado domestic violence statute mandated an arrest, it
would not necessarily mean the victim would have an “entitlement”
to an arrest. That is, although the Pennsylvania statute allows a
victim of domestic violence to “file a private criminal complaint
against a defendant, alleging indirect criminal contempt” for
violation of a protective order, 23 Pa. Cons. Stat. § 6113.1(a), or
“petition for civil contempt” against the violator, 23 Pa. Cons. Stat.
§ 6114.1(a), like the Colorado statute, it is silent as to whether a
victim can request, much less demand, an arrest.14 See 23 Pa.
Cons. Stat. Ann. § 6113:1(a). In fact, “[w]hen an individual files
a private criminal complaint [under § 6113.1], the district attorney
has the discretion to refrain from proceeding for policy reasons.”
Starr v. Price, 385 F. Supp. 2d 502, 511 (M.D. Pa. 2005); Pa. R.
Crim. P. 506.

       Moreover, Jill Burella’s attempt to limit the Supreme
Court’s holding in Castle Rock to situations in which the abuser is
not present at the time of the alleged violation is unconvincing.
She is correct that the Supreme Court stated that “[t]he practical


14
  We acknowledge that in allowing a domestic violence victim to
initiate criminal contempt proceedings, the Pennsylvania statute
goes further than the Colorado statute, which only allowed a victim
of domestic violence to request that the State initiate such
proceedings.

                                  19
necessity for [police] discretion is particularly apparent in a case
such as this one, where the suspected violator is not actually
present and his whereabouts are unknown.” Id. at 762. But, in our
view, the Court’s holding in Castle Rock did not depend on the
absence of the perpetrator. Indeed, we agree with the officers that
the perpetrator’s absence “was only additional fodder for
discretion, not a necessary ingredient.” (See Appellants’ Suppl.
Letter Br. at 3.)

         Finally, we cannot ignore that despite framing the issue as
one of procedural due process, what Jill Burella appears to seek is
a substantive due process remedy: that is, the right to an arrest
itself, and not the pre-deprivation notice and hearing that are the
hallmarks of a procedural due process claim.

       In short, whether framed as a substantive due process right
under DeShaney, or a procedural due process right under Roth, Jill
Burella does not have a cognizable claim that the officers’ failure
to enforce the orders of protection violated her due process rights.15
Therefore, we need not determine whether her entitlement to police
protection was “clearly established” at the time of the alleged
violation before concluding that the officers are entitled to
qualified immunity.

3)     State-Created Danger

       We also conclude that Jill Burella cannot succeed on her
state-created danger claim because she fails to allege any facts that
would show that the officers affirmatively exercised their authority
in a way that rendered her more vulnerable to her husband’s
abuse.16

15
   We note that at least one Pennsylvania district court has
recognized that Coffman, which the District Court relied on in this
case, is no longer good law in light of Castle Rock. See Starr, 385
F. Supp. 2d at 502.
16
  Although the District Court did not evaluate Jill Burella’s state-
created danger claim because it had already decided that she
possessed a Roth entitlement to police protection, Burella, 2003

                                 20
        We have described the state-created danger doctrine as “a
complement to the DeShaney holding.” Bright v. Westmoreland
County, 443 F.3d 276, 281 (3d Cir. 2006). The doctrine recognizes
that a constitutional violation may result “when state authority is
affirmatively employed in a manner that injures a citizen or renders
him more vulnerable to injury from another source than he or she
would have been in the absence of state intervention.” 17 Id.


WL 23469295, at *7 n.4, we think the record is sufficiently
developed in this case to allow us to address the issue. See In re
Ben Franklin Hotel Assocs., 186 F.3d 301, 306 (3d Cir. 1999)
(“Because the record has been sufficiently developed for us to
resolve this legal issue, we need not remand to the District Court
to consider it in the first instance.”); see also Hudson United Bank
v. Litenda Mortgage Corp., 142 F.3d 151, 159 (3d Cir. 1998)
(“This procedure is generally appropriate when the factual record
is developed and the issues provide purely legal questions, upon
which an appellate court exercises plenary review.”). Moreover,
we note that in her brief on appeal, Jill Burella does not ask that we
remand the issue to the District Court, but rather, thoroughly argues
the merits of her claim. (See Appellant’s Br. at 48-66.)
17
    We have held that there are four elements of a state-created
danger claim: (1) “the harm ultimately caused was foreseeable and
fairly direct,” (2) “a state actor acted with a degree of culpability
that shocks the conscience,” (3) “a relationship between the state
and the plaintiff existed such that the plaintiff was a foreseeable
victim of the defendant’s acts, or a member of a discrete class of
persons subjected to the potential harm brought about by the state’s
actions as opposed to a member of the public in general;” and (4)
“a state actor affirmatively used his or her authority in a way that
created a danger to the citizen or that rendered the citizen more
vulnerable to danger than had the state not acted at all.” Bright,
443 F.3d at 281 (emphasis added) (internal quotation marks
omitted). We first recognized a viable state-created danger claim
in Kneipp v. Tedder, 95 F.3d 1199, 1211 (3d Cir. 1996), a case in
which the plaintiff suffered severe injuries after police stopped her
on her way home with her husband while she was in an obvious
state of inebriation, told the husband that he should go home and
that they would take care of plaintiff, and then abandoned plaintiff

                                 21
(internal quotation marks omitted) (emphasis added).

       Jill Burella contends that the officers’ “continual refusal to
enforce the court order and follow state law requiring Officer
Burella’s arrest, together with their false direction that ‘there was
nothing they could do,’ as well as overall inadequate intervention
were affirmative acts which together increased the likelihood of
harm.” (Appellee’s Br. at 50.) Her attempt to characterize the
officers’ alleged wrongdoing as an affirmative misuse of authority
is not persuasive. Rather, it is apparent that what she actually
contends is that the officers failed to act at all. We agree with the
officers that this argument is deficient as a matter of law. See Ye
v. United States, 484 F.3d 634, 638 (3d Cir. 2007) (“[B]oth
DeShaney and [Third Circuit] precedents explicitly require[] an
affirmative act, rather than inaction.”).

        For example, in Bright, we addressed a claim brought on
behalf of Annette Bright, an eight-year-old girl murdered by a man
who was released on parole for an earlier sex offense involving
Annette’s twelve-year-old sister. The perpetrator repeatedly
violated his parole by attempting to carry on a relationship with the
victim. The girls’ father called the police and was assured that the
perpetrator’s parole would be revoked. Before the parole
revocation hearing, however, the perpetrator murdered Annette in
retaliation against her family for trying to prevent him from seeing
Annette’s sister. 443 F.3d at 278-79.

       Annette’s father, suing on her behalf, argued that the police
caused Annette’s death by (1) delaying the revocation of parole;
(2) assuring Annette’s family that they would protect Annette, but
then failing to do so; and (3) not following up on a confrontation
with the perpetrator prior to Annette’s murder, thereby
“embolden[ing] him to commit a crime he otherwise would not
have committed.” Id. at 283. We rejected this argument on
grounds that:




on the side of the road, at which point plaintiff sustained her
injuries.

                                 22
       The reality of the situation . . . is that what is alleged
       to have created a danger was the failure of the
       defendants to utilize their state authority, not their
       utilization of it. [Plaintiff] has identified no action of
       the defendants that utilized their state authority in a
       manner that rendered Annette more vulnerable . . .
       than she would otherwise have been.

Id. at 284. As in Bright, Jill Burella does not allege any facts that
would establish that the officers did anything other than fail to act.
That failure, while deeply troubling and unquestionably tragic, does
not give rise to a cognizable state-created danger claim.

B.     Equal Protection

        Jill Burella asserts federal equal protection claims against
the City (Count III) and the officers (Count IV). The District Court
analyzed both claims together, concluding, first, that a reasonable
jury could find that at the time of the shooting, there was an
unlawful custom among Philadelphia police officers not to enforce
orders of protection; and, second, that because the equal protection
rights of domestic violence victims were clearly established during
the period when Jill Burella reported the abuse to the Philadelphia
Police Department, the officers are not entitled to qualified
immunity. We disagree with the District Court and conclude that
the officers are entitled to qualified immunity as to Jill Burella’s
equal protection claim.

       In Hynson v. City of Chester, 864 F.2d 1026 (3d Cir. 1988),
we held that to survive summary judgment, a plaintiff alleging an
equal protection claim based on the unequal treatment of domestic
violence victims

       must proffer sufficient evidence that would allow a
       reasonable jury to infer that it is the policy or custom
       of the police to provide less protection to victims of
       domestic violence than to other victims of violence,
       that discrimination against women was a motivating
       factor, and that the plaintiff was injured by the policy
       or custom.

                                  23
Id. at 1031. This, we said, “is the essence of the constitutional
right which the plaintiff[] must show was clearly established at the
time of the alleged violation in order to negate the police officers’
qualified immunity.”18 Id.

       In its analysis, the District Court identified three factual
allegations that would support Jill Burella’s claim that the
Philadelphia Police Department had a custom or policy of
providing victims of domestic violence with less protection than
other victims of violence: (1) “police officers were confused as to
their authority under the law to arrest violators of protection
orders;” (2) “officers did not know whether to make an arrest for
a violation of an order or to just advise the complainant of his or
her rights;” and (3) “the City knew of the confusion among its
police officers for some time prior to January 12, 1999, when the
Plaintiff was shot.” 19 Burella, 2003 WL 23469295, at *11.

      As to evidence of discriminatory intent, the District Court
observed that Jill Burella relied on (1) the deposition testimony of

18
   In her amended complaint, Jill Burella also alleges that the
Philadelphia Police Department’s “response to matters involving
a police officer and/or spouse of a police officer were
discriminatory polic[i]es and/or executed in a[] discriminatory
manner.” (App. at 74.) We note that the District Court did not rule
on the issue of whether the City of Philadelphia or the officers treat
victims of domestic violence who are spouses of police officers
differently than other victims of domestic violence.
19
   Although this portion of the District Court’s analysis was set
forth in its discussion of Count II of the amended complaint, which
asserted a due process claim against the City, the District Court
relied on the same analysis to conclude that there was sufficient
evidence of an unlawful custom for purposes of Jill Burella’s
federal equal protection claim. See Burella, 2003 WL 23469295,
at *12. In addition, we note that the District Court rejected the
argument that the Philadelphia Police Department’s “Directive 90”
is an affirmative policy that violates the Pennsylvania Protection
from Abuse Act. Id. at *10-11.

                                 24
Sergeant Francis Healy, the Special Assistant to the former Police
Commissioner, who “stated that victims of domestic violence are
predominantly women;” (2) an expert report prepared for purposes
of the lawsuit that concluded that “the Philadelphia Police
Department has discriminated against female victims of domestic
violence;” and (3) “the manner in which the Police Department
handled her own domestic abuse situation.” Id. at *12. The
District Court explicitly noted that Jill Burella “provide[d] no other
support for the assertion that discrimination against domestic
violence victims amounts to gender discrimination against
women.” Id.

       With respect to the issue of causation, the District Court
summarily concluded that “the causation inquiry is one of fact to
be decided by a jury.” Id.

        Although the Philadelphia Police Department’s apparent
disregard of Jill Burella’s numerous pleas for help raises a serious
question as to whether this was but one example of a larger pattern
of mishandling domestic violence complaints, we cannot agree that
the factual allegations and evidence identified by the District Court
are sufficient to satisfy the requirements set forth in Hynson. For
example, in Hynson, we cited favorably to Watson v. Kansas City,
857 F.2d 690 (10th Cir. 1988), in which the Tenth Circuit
concluded that a jury could infer discriminatory motive where the
victim produced statistical evidence that nondomestic violence
complaints were more likely to lead to arrest than domestic
violence complaints. See Hynson, 864 F.2d at 1030; Watson, 857
F.2d at 696. In addition, there was evidence in Watson that police
officers received training on how to “defuse” domestic violence
situations, and were instructed to arrest the abuser as a last resort.20
See Hynson, 864 F.2d at 1030; Watson, 857 F.2d at 696.

       Similarly, in Brown v. Grabowski, 922 F.2d 1097 (3d Cir.
1990), we noted that plaintiff produced evidence showing that the
individual officers named as defendants in the lawsuit had “dismal”


20
  Like George Burella, the abuser in Watson was a police officer.
See Watson, 857 F.2d at 692.

                                  25
records concerning domestic assaults. For example, one officer
failed to file “a single domestic violence complaint or report” in the
period between the enactment of the New Jersey domestic violence
statute in 1982 and when the victim was murdered in 1985. Id. at
1117 n.12.

       While statistical evidence and individual arrest records are
not per se requirements in this context, such evidence may often be
crucial. Indeed, in this case there is a marked absence of any
comparable evidence (or even factual allegations) from which a
reasonable jury could find an unlawful custom or infer a
discriminatory motive. Therefore, we need not determine whether
“a reasonable police officer” would have known that the conduct
alleged violated Jill Burella’s clearly established equal protection
rights before concluding that the officers are entitled to qualified
immunity on her claim.21

V.      Conclusion

        The facts Jill Burella alleges, if true, reveal a terrible
deficiency on the part of the Philadelphia Police Department in
responding to her complaints of domestic abuse. Binding precedent
nevertheless compels our conclusion that the officers’ failure to
arrest her husband, or to handle her complaints more competently,
did not violate her constitutional right to due process or equal
protection of the law. Accordingly, we hold that the officers are
entitled to qualified immunity on her constitutional claims.

      We will reverse and remand to the District Court for further
proceedings consistent with this opinion.




21
    We note that the District Court relied on its analysis of Jill
Burella’s federal equal protection claim to deny the officers and the
City summary judgment on her state equal protection claim. See
Burella, 2003 WL 23469295, at *13. Given our federal equal
protection ruling, the District Court may determine on remand that
it is necessary to reexamine the state claim.

                                 26
AMBRO, Circuit Judge, concurring in part

       State protection-from-abuse statutes seem to reside in a
rock-solid castle of narrow construction barring any federal
constitutional relief for the very victims that the statutes are
designed to protect. I join my colleagues in their analysis of Jill
Burella’s substantive due process, equal protection, and state-
created danger claims. I join them as well in the result they reach
concerning procedural due process. My comments that follow
address that issue.

        In Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005),
the Supreme Court reiterated its “continuing reluctance to treat the
Fourteenth Amendment as a font of tort law.” Id. at 768 (internal
citations and quotation marks omitted). It held that Colorado’s
legislature had created no constitutionally protected entitlement to
protection for victims of abuse because it did not truly mandate that
police officers arrest violators of court-issued restraining orders.
Id. at 760. “[A] true mandate of police action,” the Court opined,
“would require some stronger indication from the Colorado
Legislature than ‘shall use every reasonable means to enforce a
restraining order’ (or even ‘shall arrest . . . or . . . seek a warrant’).”
Id. at 761 (quoting Colo. Rev. Stat. § 18-6-803.5(3)(a) & (b)).

         Ms. Burella contends that Pennsylvania’s Protection from
Abuse Act of 1994 provided sufficiently clear indication of
mandatory police action. While Pennsylvania’s General Assembly
has made a valiant effort to do so, I cannot submit that it has
succeeded post-Castle Rock. Moreover, even if Pennsylvania’s
Protection Act created a substantive entitlement to mandatory
police action, the officers here have qualified immunity because
any such entitlement was not clearly established at the time of the
events in question. Thus, for any claim to afford constitutional
relief in preventing domestic violence and protecting future victims
of abuse, Pennsylvania’s legislators would need to go back to the
drawing board.


                                    27
        “The Fourteenth Amendment’s procedural protection of
property is a safeguard of the security of interests that a person has
already acquired in specific benefits.” Bd. of Regents of State Coll.
v. Roth, 408 U.S. 564, 576 (1972). “To have a property interest in
a benefit, a person clearly must . . . have a legitimate claim of
entitlement to it.” Id. at 577. Such entitlements arise from
“existing rules or understandings that stem from an independent
source such as state law—rules or understandings that secure
certain benefits and that support claims of entitlement to those
benefits.” Id.; see also Bishop v. Wood, 426 U.S. 341, 345 (1976).
To determine whether a certain interest rises to the level of a claim
of entitlement that is constitutionally protected by the procedural
due process requirements of the Fourteenth Amendment, we look
to the nature rather than the weight of the interest at stake. Roth,
408 U.S. at 571; see also Perry v. Sindermann, 408 U.S. 593, 602
(1972); Morrissey v. Brewer, 408 U.S. 471, 481 (1972). This
means “specific benefits,” Roth, 408 U.S. at 576, that are designed
to benefit a plaintiff directly. See Castle Rock, 545 U.S. at 766.

       Castle Rock addressed whether a Colorado statute setting
police officers’ duties in crimes relating to violations of court-
issued restraining orders created a constitutionally protected
property interest or entitlement for victims of abuse in that state’s
statutory scheme. Id. at 751. In concluding that Colorado created
no such interest or entitlement, the Supreme Court reasoned
primarily from the statutory language, which was not sufficient to
overcome “[a] well established tradition of police discretion . . .
with apparently mandatory arrest statutes.”              Id. at 760.
Specifically, the Court held that the Colorado legislature failed to
create a “truly . . . mandatory” 22 arrest statute because “shall” had

22
   The Castle Rock majority notes that “in the specific context of
domestic violence, mandatory-arrest statutes have been found in
some States to be more mandatory than traditional mandatory-
arrest statutes.” 545 U.S. at 761, 762 (emphasis added). This
language is awkward, as “mandatory” does not have gradations on
a scale. An act is mandated, or it is not. In the same vein, Justice

                                 28
been used elsewhere in Colorado arrest laws to mean “may,” and
because the statute explicitly gave police officers the option of
arresting or seeking an arrest warrant. Id. at 761. The discretion
granted police under the Colorado statute was particularly apparent
in Castle Rock, where the suspected violator was not actually
present. There was also nothing in the statute mandating that
police pursue the violator to enforce the order; rather, they were to
exercise their discretion in whether and how to pursue that violator
or seek a warrant for doing so. Id. at 762. “[A] true mandate of
police action,” the Court opined, “would require some stronger
indication from the Colorado Legislature than ‘shall use every
reasonable means to enforce a restraining order’ (or even ‘shall
arrest . . . or . . . seek a warrant’).” Id. (quoting Colo. Rev.
Stat. § 18-6-803.5(3)(a) & (b)). In addition to the insufficiently
strong language, the Colorado legislature had created no “true
mandate” because the nature of the purported entitlement—arrest,
seeking a warrant, or enforcement otherwise—was too
indeterminate. Id. at 763. Finally, the Colorado “mandate” was
lacking because the benefit to the victim of enforcement was
collateral rather than direct, inasmuch as the statute made no
provisions for the victim herself to initiate criminal contempt
proceedings against the violator, keeping that prerogative in the
hands of the state.

       Perhaps most importantly, the statute spoke directly
       to the protected person’s power to ‘initiate contempt
       proceedings against the restrained person if the
       order [was] issued in a civil action or request the
       prosecuting attorney to initiate contempt
       proceedings if the order [was] issued in a criminal
       action.’ [Colo. Rev. Stat.] § 18-6-803.5(7). The



Stevens observed, “[t]he innovation of the domestic violence
statutes was to make police enforcement . . . not ‘more mandatory,’
but simply mandatory.” Id. at 784 (Stevens, J., dissenting)
(emphasis in original).

                                 29
       protected person’s express power to ‘initiate’ civil
       contempt proceedings contrasts tellingly with the
       mere ability to ‘request’ initiation of criminal
       contempt proceedings—and even more dramatically
       with the complete silence about any power to
       ‘request’ (much less demand) that an arrest be made.

Id. at 766.

        In essence, Castle Rock recognized that a state statute could
create a mandatory arrest scheme when the statutory language
strongly signals an intent to curtail police discretion to enforce a
protection order (1) with clearly commanding language, (2) by
excluding the indeterminacies accompanying the option either to
arrest or to seek a warrant, and (3) by creating a direct entitlement
permitting the victim herself to pursue enforcement. The
Pennsylvania Protection Act no doubt comes closer than Colorado
in meeting these tests. Alas, it too fails.

        The language of the Pennsylvania Protection Act differs
markedly from Colorado’s discretionary language. Unlike
Colorado’s law, Pennsylvania’s statute did not simply state that
“[a] peace officer shall use every reasonable means to enforce a
protection order” and “shall arrest, or, if an arrest would be
impractical under the circumstances, seek a warrant,” Colo. Rev.
Stat. § 18-6-803.5(3) (emphases added). Rather, the Pennsylvania
Protection Act, when enacted in 1976, required no warrant where
there was probable cause to believe that a suspect had violated a
protection-from-abuse (PFA) order. Following amendments in
1994, the statute now provides that officers “shall arrest a
defendant for violating an order.” 23 Pa. Con. Stat. § 6113(a).
This amended language restricts the window of discretion by
omitting language granting officers the option to seek a warrant
rather than to arrest. The 1994 amendments also permitted victims
to pursue directly (although, as noted below, with limits) criminal
prosecution of protection-order violators. 23 Pa. Const. Stat.


                                 30
§ 6113.1 (providing for “private criminal complaints for violation
of order”). In addition, violation of the PFA order itself became
a crime—that of criminal contempt. 23 Pa. Con. Stat. § 6113(c).
In effecting these three principal changes and some others,
Pennsylvania provided deliberate and strong indication that it
intended arrest to be mandatory under the statute.23 No longer did
it give police the option to arrest; it now commanded it.

         The issue is whether this intent to mandate arrest can get
around the “deep-rooted nature of law-enforcement discretion,
even in the presence of seemingly mandatory legislative
commands,” Castle Rock, 545 U.S. at 761, and particularly in
light of the presumption that “all police officers must use some
discretion in deciding when and where to enforce [statutes].” City
of Chicago v. Morales, 527 U.S. 41, 62 n.32 (1999) (emphasis
added). Castle Rock appealed to this presumption, “[t]he practical
necessity for” which it deemed “particularly apparent [in that case]
. . . where the suspected violator [wa]s not actually present and his
whereabouts [we]re unknown.” Castle Rock, 545 U.S. at 762.

        To be sure, state and federal criminal statutes typically
specify crimes and penalties without dictating the way law
enforcement will arrest and prosecute suspected criminals, leaving
that to the executive’s discretion. But if courts recognize that it is
ever possible for legislatures to mandate the police to arrest, as
Castle Rock seemed to do, 545 U.S. at 761, I do not see why police
officers’ decisions in how to carry out their duty to arrest, or even
their inability to arrest in certain situations should the perpetrator


23
   The statutory history shows a consistent pattern of increasing the
scope of protection and enforceability of protection orders. For
example, the 1994 amendments further created a right of action for
civil contempt in § 6114.1 and recognized foreign protection orders
in § 6118 (providing for “full faith and credit”). We note as well
that amendments in 2001 incorporated the recognition of foreign
protection orders into § 6113, thereby requiring arrest for “foreign
protection order[s]” as well as Pennsylvania PFA orders.

                                 31
be absent, compromise the extent to which a statute mandates
arrest (as the Pennsylvania Protection Act purports to do). After
all, the absence of the perpetrator in Pennsylvania would not lessen
the statutory requirement to arrest him for violation of a PFA
order; it would simply mean the impossibility of carrying out the
mandate at some particular time.

        If the Protection Act is read to mandate arrest, a byproduct
of that mandate is of course the specification of a definite
entitlement: arrest for a violation. Castle Rock noted that even if
Colorado’s statutory language required truly mandatory arrest, it
did not create an entitlement because it did not grant the victim the
right to bring a criminal action against the violator to enforce the
order. 545 U.S. at 765–66. It instead permitted the victim to
initiate civil contempt proceedings directly or to request initiation
of criminal contempt proceedings. Id. at 766. This rendered any
government’s enforcement action “indirect and incidental” to the
victim. Id. at 767 (quoting O’Bannon v. Town Ct. Nursing Ctr.,
447 U.S. 773, 787 (1980)).

       The Pennsylvania General Assembly attempted to avoid this
infirmity by granting the victim the right to initiate a criminal
prosecution herself. While this gives hope to victims of abuse, my
colleagues correctly point out that proceeding with any such suit
is within the discretion of the local district attorney. Without
commenting on the practical wisdom of stripping the district
attorney of this discretion, it would need to be eliminated were the
Protection Act amended further.

                         *   *   *    *   *

       Pennsylvania has enacted statutory provisions much
stronger than those of Colorado to signal its intent to entitle Ms.
Burella and other victims of abuse to redress the lack of
enforcement of PFA orders. This laudable effort, which predates
Castle Rock, does not meet that case’s substantial roadblocks.


                                 32
Further revisions to the Protection Act are required, but in no event
will they help Ms. Burella. Moreover, I reluctantly concede my
colleagues are correct to suggest that a legislature would be hard-
pressed to draft around Castle Rock in light of the “well-
established tradition of police discretion [that] has long coexisted
with apparently mandatory arrest statutes.” Maj. Op. at *17 (citing
Castle Rock, 545 U.S. at 760). Although the Supreme Court has
not held explicitly that a state legislature can never mandate arrest
or that abuse-protection statutes can never create a constitutionally
protected interest, the perception persists that few (if any) paths to
those results are available. There is nothing left but to observe that

       [i]n light of [Castle Rock] and . . . DeShaney [v.
       Winnebago County Department of Social Services,
       489 U.S. 189 (1989)], the benefit that a third party
       may receive from having someone else arrested for
       a crime generally does not trigger protections under
       the Due Process Clause, neither in its procedural nor
       in its “substantive” manifestations.

Castle Rock, 545 U.S. at 768 (citations omitted) (emphasis added).
The next version of the Protection Act to be written (if at all) by
the Pennsylvania General Assembly requires resolving conflicts of
policy—the protection of citizens and the discretion accorded
police officers and district attorneys in carrying out that function.
Moreover, even if the Act is amended to contain the strongest,
most discretionless language, it may nonetheless succumb to
challenge and prove to be a Potemkin village.24


24
  What then can be done? The answer may simply be to take this
case out of a constitutional context and into one of state tort law.
This, of course, would require a waiver of immunity under the
Commonwealth’s Political Subdivision Tort Claims Act. Currently
under that Act, the Pennsylvania government asserts immunity
from claims by individuals “on account of injury to a person or
property caused by the act of [a] local agency or an employee
thereof or any other person.” 42 Pa. Con. Stat. Ann. § 8541. Eight

                                 33
exceptions to governmental immunity are spelled out in 42 Pa.
Con. Stat. Ann. § 8542. These exceptions currently do not provide
for governmental liability for police officers’ failure to protect
victims of domestic abuse. See generally Simmons v. City of
Phila., 947 F.2d 1042, 1084–88 (3d Cir. 1991) (discussing
immunity and liability under Pennsylvania’s Political Subdivision
Tort Claims Act).

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