
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 corrected        as follows:            On cover sheet, line 26: substitute "Laffitte" for "Lafitte".            On page  21, line 2:  substitute "Kneipp v. Tedder,  95 F.3d 1199,                                              ______    ______        1201 (3d Cir. 1996)" for "Kneipp, 95 F.3d at 1201".                                  ______                            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 brief,            ___________________________             ___________        for appellant.            Vannessa  Ramirez,  Assistant  Solicitor  General,  Department  of            _________________        Justice, with  whom Carlos Lugo-Fiol, Solicitor General,  was on brief                            ________________        for appellees.                                 ___________________                                   January 13, 1997                                 ____________________                      LYNCH, Circuit Judge.   On  April  21, 1991,  Angel                      LYNCH, Circuit Judge.                             _____________            Rodriguez shot  to  death his  two  young children  and  then            killed  himself.     This tragedy  occurred  four days  after            Rodriguez's wife,  Flor Maria Soto, complained  to the police            about  the  physical  and  emotional abuse  she  suffered  at            Rodriguez's  hands.    The   police,  knowing  Rodriguez  had            threatened to kill Soto  and her family  if Soto went to  the            police to have him jailed for his  spousal abuse, nonetheless            violated  their obligations  of confidentiality  and informed            Rodriguez of Soto's complaints.   Having done so,  the police            did not jail Rodriguez or take  steps to protect Soto and her            family.   Soto's lawsuit alleges  that Rodriguez did  what he            had  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  42 U.S.C.   1983, claiming            that the actions of  the defendants, Carlos Flores, a  police            officer,   and   Ismael   Betancourt-Lebron,  Puerto   Rico's            superintendent  of police,  violated her  and her  children's            rights to substantive due process  and to equal protection of            the  laws.   The district court  granted summary  judgment in            favor  of  the defendants.   We  do  not reach  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  officers  are protected  by qualified  immunity on            that  claim.   As to the  equal protection claim,  we adopt a            standard  for  measuring  such  claims  in  domestic violence            cases.   Testing the evidence against that  standard, we find            that   Soto  has   not   adduced   sufficient   evidence   of            discriminatory   intent   to   survive    summary   judgment.            Accordingly, we affirm the district court.                                                          I. Facts                      We recite  the facts in the light most favorable to            the  plaintiff, the  party opposing  summary judgment.   Flor            Maria Soto married Angel  Rodriguez, nicknamed Rafi, in 1981.            Rodriguez  and Soto had two children: Sally was born in 1983,            and  Chayanne, a  boy, in  1988.   Approximately a  year into            their marriage, Rodriguez began to abuse Soto emotionally and            physically.    This  abuse,  often connected  to  Rodriguez's            drinking, continued throughout their marriage.  The abuse was            apparent  to family  and friends.   As  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  officers at Palmer Police  Station, a sub-station            of  the Rio  Grande  precinct.   Rodriguez  was friends  with            several of  the officers from Palmer  Station, including Luis                                         -3-                                          3            Carrasquillo-Morales  ("Carrasquillo")1 and  defendant Carlos            Flores-Moreira ("Flores").    Rodriguez visited  the  station            almost daily.   Many of the  officers, when on patrol  in the            area,   would visit the  Rodriguez-Soto home for  coffee or a            drink.    Flores  and Rodriguez  were  particularly friendly;            about once  a week, during  his patrol  rounds, Flores  would            stop by the house for an hour's visit.                      On Wednesday, April 17, 1991, Rodriguez struck Soto            about  her face  and  neck,  bruising  her,  and  called  her            insulting names.  When  Rodriguez fell drunkenly asleep, Soto            gathered the children and went to her mother's house.  Soto's            mother,  Hipolita Vega, convinced her to go to the police and            file a  complaint.  In nine  years of beatings,  some of them            worse than  the one on April  17, Soto had never  sought help            because  she  believed  that  the police  would  do  nothing,            because she had  nowhere to go, and because she was afraid of            Rodriguez.    Rodriguez  had  threatened her  with  a  gun on            several occasions and  told her  that he would  kill her  and            other  members of  her  family if  she  went to  the  police.            Knowing  that Rodriguez  was friendly  with the  police, Soto            feared that the police would do nothing except tell Rodriguez            that she had complained.                                              ____________________            1.  Carrasquillo was originally named  as a defendant in this            action, but defaulted in the district  court proceedings.  In            order to have a  final judgment from which she  could appeal,            Soto  sought and  was granted  a  voluntary dismissal  of her            claim against Carrasquillo.                                         -4-                                          4                      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.   Flores could see  that Soto was crying  and marked            with bruises, "pretty ugly hematomas."    Soto explained that            Rodriguez had beaten her.  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  that Soto  and            Flores waited for the patrol officers  to arrive, Flores told            Soto that he himself had domestic violence problems, and that            his wife wanted  him to be  put in  jail.  He  urged Soto  to            patch things up  with Rodriguez.   Soto responded by  telling            Flores that Rodriguez's  beatings were too much  to stand and            that,  as Flores  knew,  Rodriguez was  a heavy  drinker, who            became violent when drunk.  Soto told Flores about everything            that Rodriguez  had done and what he would do to her.  Flores            offered  Soto  the  opportunity  to  stay  overnight  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,  Carrasquillo  and  Jose Serrano,            arrived, Flores  said, "This is  Rafi's wife," and  told them                                            ____________________            2.  The  district  court  denied  a  belated  motion  to  add            Sergeant  Orta as a defendant.   No appeal  is taken from the            denial of that motion.                                         -5-                                          5            that she was there on a Law 54 complaint.   Carrasquillo took            Soto into an interview  room, three steps away from  the desk            at which Flores sat.  Soto  was nervous and crying.  The door            to the  interview room remained open, and  Flores listened to            everything  that  was  said   in  Soto's  conversation   with            Carrasquillo.                      In the interview room, Soto told Carrasquillo about            Rodriguez's   behavior,   and   showed   him   her   bruises.            Carrasquillo asked Soto whether she wanted  Rodriguez jailed.            Soto  replied by  explaining her  situation to  the officers.            Specifically, she told  Carrasquillo that Rodriguez  had told            her that  if she put  him in jail,  he would get  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  him in jail,  he would kill her  mother and            sisters so  that she would go  to the wake and  he would then            kill her there.                      Having told  the police officers  about Rodriguez's            threats,  Soto  asked  them   to  do  what  was  appropriate.            Although  Soto  did  not  use the  words  "domestic  violence            complaint," she believed that  by describing her situation to            the  officers  she  was  initiating  the  complaint  process.            Carrasquillo  wrote  down  everything  she  said  during  the            interview, and Soto assumed that he was drafting  a complaint            against Rodriguez.                                         -6-                                          6                      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  effect.   In November 1989,  the Puerto  Rican            legislature  enacted one  of the nation's  most comprehensive            domestic  violence laws,  the Domestic  Abuse  Prevention and            Intervention  Act, known popularly as "Law  54."  In addition            to defining criminal domestic  violence broadly, Law 54 makes            arrest of an abuser mandatory whenever an officer has grounds            to  believe that Law  54 has been  violated.   P.R. Laws Ann.            tit.  8,    631-635, 638  (Supp. 1995).   Police officers are            required  to take all  steps necessary to  prevent abuse from            recurring,   including   providing   the   complainant   with            information  about  social  services and,  if  she  expresses            concern for her safety, with  transportation to a safe place.            Id.   640.  Law 54  also requires that police officers file a            ___            written report on all domestic violence incidents, whether or            not  any charges  are ever  filed.   Id.    641.   The police                                                 ___            superintendent  is   charged  with  establishing   "norms  to            guarantee confidentiality with regard  to the identity of the            persons  involved in  incidents of  domestic violence."   Id.                                                                      ___            Implementing  regulations  issued  by the  superintendent  of            police  detail the  officer's responsibilities,  and instruct            that  arrest  determinations  are   not  to  be  affected  by            irrelevant factors, including victim  reluctance.   Rules and            Procedures to Attend  to Domestic Violence  Incidents, Puerto                                         -7-                                          7            Rico  Police  General  Order  No.  86-26m   (Rev.  1).    The            regulations   explicitly  state   that  police   attempts  at            mediation or reconciliation shall not substitute for  arrest.            Id.  at 4.   The regulations  require that  domestic violence            ___            reports  be kept  confidential, in  separate files,  and that            copies only be issued upon a court order.   Id. at 19.  These                                                        ___            regulations explicitly recognize that:                      Domestic  violence . .  . frequently ends                      in intra-family homicide  and it  affects                      all   the   components  of   the  family,                      including the children.            Id. at 1.            ___                       Despite this legal framework, at the conclusion of            his  interview  with  Soto,  Carrasquillo  took   no  action.            Carrasquillo  did not  tell  Soto about  the availability  of            battered women's shelters  or about procedures  for obtaining            an  order of  protection.   Nor  did  he prepare  a  domestic            violence report.   Instead,  Carrasquillo wrote up  an "Other            Services  Report,"  which  falsely indicated  that  Soto  had            visited  the  police  solely  for advice  relating  to  child            custody.3  Soto returned to Vega's house.                                             ____________________            3.  Soto contends that she  signed a domestic violence report            at  the station that night and that the Other Services Report            produced  by the  defense is  an after-the-fact  forgery, and            part  of  a cover-up,  which included  pressure on  Flores to            commit perjury.   Her claim  of forgery is  supported by  the            testimony  of a  handwriting  expert, and  Flores's testimony            suggests that pressure was put on him.                                               -8-                                          8                      Carrasquillo  discussed  Soto's complaint  with his            supervisor, Sergeant Orta, that  evening.  When Sergeant Orta            signed  the   Other  Services   Report  he  did   so  despite            information that this was a Law 54 situation and that the men            under his supervision  were not doing what  the law required.            Sergeant  Orta discussed  the  "Other  Services" report  with            Flores.4     Flores  told him  that  Rodriguez and  Soto  had            marital problems because Rodriguez  was an alcoholic.  Flores            said he would talk to Rodriguez the next day.                       Sometime the  next day, April  18, Officer  Flores,            despite knowing  of Rodriguez's  threats to commit  murder if            Soto went to the police in an effort to jail him, went to the            Rodriguez-Soto home and told  Rodriguez about Soto's visit to            the police station.  That  night, Rodriguez arrived at Vega's            home, very upset.   He  told Vega and  Glorivee Soto,  Soto's            sister,  that "the boys" from the police station had told him            that  Soto wanted to  put him in  jail and that  he would not            allow that to happen.  Vega managed to calm him and he left.                      The next day, Friday,  April 19, Rodriguez ran into            the plaintiff  at  a local  tire  shop.   Rodriguez,  visibly                                            ____________________            4.  A  police department internal  investigation followed the            killings.  On  August 31, 1992,  the examiner concluded  that            Carrasquillo and Sergeant Orta, the supervisor who signed the            Other  Services  Report  prepared  by  Carrasquillo,  merited            reprimands  for   failing  to  act  pursuant   to  the  norms            established by Law 54.   Neither Betancourt-Lebron nor Flores            was  a subject  of  that investigation,  although Flores  was            interviewed regarding his knowledge of the events.                                         -9-                                          9            upset, told plaintiff that  Officer Flores had been  to their            home  and had told  him that Soto  was going to  throw him in            jail.  Soto, fearing violence, denied  it.  She tried to calm            Rodriguez down, but Rodriguez  kept repeating that Flores had            told him she wanted him jailed.                       On  Saturday,  the  twentieth of  April,  Rodriguez            again  came to  Vega's home  and invited  Soto to  the beach.            Soto refused to  go, but  the children, excited  at the  rare            prospect  of an outing with  their father, got  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  8:00 p.m.  on April 21,  Soto, mindful            that the next day was  a school day, went back to  the family            home determined to  get the children.   As she  stood on  the            lawn, Soto heard  both children tell  Rodriguez that she  had            arrived.  Sally shouted, "Run, Mommy, please run!"  Rodriguez            then shot his  son in the forehead.  Soto  heard Sally say to            her  father,  "Daddy, no,  Daddy, no."   Rodriguez  then shot            Sally through her mouth.  Soto heard a third shot.  Rodriguez            had killed himself.      When    the     police,    including            Carrasquillo and  Serrano, arrived, Rodriguez was  dead.  The            children were still alive  and the police rushed them  to the            hospital.  Both children were dead on arrival.                                         -10-                                          10                      On the wall  of the room  where Rodriguez shot  his            children, Rodriguez  had  written a  message which  confirmed            that Flores had told him of  Soto's visit to the police.  The            message said,  among other things, "you left  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  alleged that            the  acts and omissions of Officer Flores deprived her of her            rights  to due process and  to equal protection  of the laws.            Additionally,  she  alleged  that Superintendent  Betancourt-            Lebron  was liable  for  his failure  to  properly train  and            supervise his subordinate officers.                      After discovery, Flores and Betancourt-Lebron moved            to dismiss,  and, in  the alternative, for  summary judgment.            In  addition to arguing that  Soto's claims lacked merit, the            defendants   asserted  that   they   were  entitled   to  the            protections  of  qualified immunity.    In  an opinion  dated            January 20, 1995, the  district court granted the  motion for            summary judgment.   As to  the due process  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                                          ________________    ______                                         -11-                                          11            F.2d 6,  7-10 (1st Cir.  1986)).  As to  the equal protection            claim, the court held  that Soto had failed to  adduce enough            evidence  on discriminatory  intent  and causation  to defeat            summary judgment. Soto, 878 F. Supp. at 331-32.                              ____                      Soto  requested  reconsideration;  as  part  of her            motion, she asked for  leave to amend her complaint  to bring            the action as a representative of her children.  The district            court  treated the  complaint as  amended, but  dismissed the            claim  on behalf  of  the  children,  holding  it  barred  by            DeShaney v. Winnebago County, 489 U.S. 189 (1989).  The court            ________    ________________            accordingly denied Soto's  motion for reconsideration.   Soto            appeals.                             III. The Section 1983 Claims                      Soto  presses  two  distinct claims.    First,  she            alleges  that the  defendants' actions  violated her  and her            children's rights to  due process.  Second, Soto asserts that            the defendants  had  a custom  or  policy of  providing  less            protection to victims of domestic violence than to victims of            other  assaults,   that  this   was  the  result   of  gender            discrimination,  that  this  caused her  injuries,  and  that            defendants thus violated  her right to equal  protection.  We            consider each of these claims in turn.                       A  claim  under  section  1983  has  two  essential            elements.  First, the challenged conduct must be attributable            to a person acting under color of state law (including Puerto                                         -12-                                          12            Rico law); second, the  conduct must have worked a  denial of            rights  secured  by  the  Constitution  or  by  federal  law.            Martinez v. Colon, 54 F.3d 980, 984 (1st Cir.), cert. denied,            ________    _____                               ____________            116  S.  Ct. 515  (1995).   The  second element  requires the            plaintiff to prove  not only a deprivation  of federal right,            but also that the defendant's conduct was  a cause in fact of            the   alleged   deprivation.     See   Maldonado-Santiago  v.                                             ___   __________________            Velazquez-Garcia, 821 F.2d 822, 831  (1st Cir. 1987)("Section            ________________            1983  imposes  a causation  requirement  similar  to that  of            ordinary tort law.").              A. The Due Process Claim               _____________________                      Soto  claims that  the deaths  of her  children are            attributable  to  the  defendants' actions,  and  that  those            actions  deprived both her and her children of what she terms            a  "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  of abuse  have brought section  1983 claims            alleging   that  official   nonfeasance   deprived  them   of            procedural due  process.   See, e.g., Meador  v. Cabinet  for            __________                 ___  ____  ______     ____________            Human  Resources,  902 F.2d  474,  476-77  (6th Cir.),  cert.            ________________                                        _____            denied, 448 U.S. 867 (1990);  Coffman v. Wilson Police Dep't,            ______                        _______    ___________________            739 F. Supp. 257,  263-66 (E.D. Pa.  1990).  In these  cases,            the plaintiffs argued that  state law made certain protective            processes mandatory, and thus created entitlements subject to            due  process  protection  against  deprivation.    See,  e.g,                                                               ____  ____            Coffman, 739 F. Supp at 263-64.  However, from our reading of            _______            the record, Soto  does not  appear to make  a procedural  due            process   claim.    Thus,  we  do  not  address  whether  the            protective provisions of Law 54 create such an entitlement.                                         -13-                                          13                      The  district  court   held  that   Soto,  in   her            individual  capacity, could  not  bring a  due process  claim            based on injury to her children.   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  the  district court's  grant of  summary            judgment de novo.  Dominique v. Weld, 73 F.3d 1156, 1158 (1st                     __ ____   _________    ____            Cir. 1996).  We examine, viewing the record in the light most            favorable to the nonmoving  party, whether the district court            correctly  applied  the  substantive   law  and  whether  any            disputed facts  have the potential  to change the  outcome of            the suit.   See Martinez v.  Colon, 54 F.3d 980,  983-84 (1st                        ___ ________     _____            Cir. 1995).                      There is no absolute constitutional right to  enjoy            the  companionship  of one's  family  members  free from  all            encroachments by the state.   See Valdivieso-Ortiz v. Burgos,                                          ___ ________________    ______            807  F.2d 6, 8  (1st Cir. 1986).   "State action that affects            the parental relationship only incidentally . . . even though            the deprivation may  be permanent . . . is  not sufficient to            establish a  violation  of a  identified  liberty  interest."            Pittsley v. Warish, 927  F.2d 3, 8 (1st Cir.),  cert. denied,            ________    ______                              ____________            502 U.S. 879 (1991).  Thus, the death of a family member will                                         -14-                                          14            not  ordinarily  give  those  still alive  a  cognizable  due            process  claim   under   section 1983.     See  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  where prison            guards beat inmate to death).  Here, the defendants' actions,            despite the  tragic outcome,  were not specifically  aimed at            ending  or affecting Soto's  relationship with  her children.            Nor can Soto successfully distinguish her case from the cited            precedents  of  this court  by  pointing  to  her own  mental            anguish.   The question is not  one of a degree of suffering,            but  whether  the  plaintiff  can establish  a  violation  of            federal  right.     While   Soto's  loss  was   of  enormous,            heartbreaking  magnitude, the  Constitution does  not protect            against  all  harms.   She  herself  was  not  deprived of  a            constitutionally protected interest, and  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  motion for reconsideration, the            district court granted Soto's  request to amend her complaint            so  as to bring a claim  as a representative of her children.            The court then found that the children's claim was foreclosed                                         -15-                                          15            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,  227 (1st Cir.            ________________________________            1994).   For  purposes  of this  appeal,  we consider  Soto's            complaint,  as amended,  to determine  if the  district court            committed   legal  error   in   holding  that   Soto,  as   a            representative of  her children, failed to state a claim upon            which  relief could  be  granted.    See  Cooter  &  Gell  v.                                                 ___  _______________            Hartmarx,  496 U.S.  384, 405  (1990) (district  court abuses            ________            discretion  when it  makes  error of  law);  cf. Glassman  v.                                                         ___ ________            Computervision  Corp.,   90  F.3d  617  (1st   Cir.  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  State's failure to protect an  individual            against  private   violence  simply  does  not  constitute  a            violation of the Due Process  Clause."  489 U.S. at 197.   We            agree that if Soto's argument were simply that Flores and his            brother  officers  failed   to  protect  her  children   from            Rodriguez,  it  would clearly  fail.    See, e.g,  Pinder  v.                                                    ___  ___   ______            Johnson, 54  F.3d 1169 (4th  Cir.) (en  banc) (rejecting  due            _______            process claim  based upon police failure  to protect domestic                                         -16-                                          16            violence  victim),  cert.  denied,  116 S.  Ct.  530  (1995);                                _____________            Balistreri   v. Pacifica Police Dep't, 901 F.2d 696 (9th Cir.            __________      _____________________            1990)(same).                      However, Soto  alleges more than a  mere failure to            protect.   She  claims,  and her  claim  has support  in  the            record,  that Officer  Flores visited  Rodriguez at  home and            told him that Soto had been to the police station and  wished            to jail  him.  She further alleges that when he did so Flores            was fully aware of  how Rodriguez would likely react  to this            information,  not  only   because  Flores  knew   Rodriguez's            character well,  but also because Flores  knew that Rodriguez            had  threatened to murder her  and her family  members if she            went to  the police and attempted to stop his abuse by having            him  jailed.   Soto alleges  that Flores  misused information            that he had obtained  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  alleges that Flores's conduct violated a duty            of   constitutional  dimension   owed  to   Soto's  children.            DeShaney clearly establishes  that the state does not  have a            ________            constitutional  duty to  protect  its  citizens from  private            violence.  DeShaney, 489 U.S. at 197.  However,  in DeShaney,                       ________                                 ________            the Supreme  Court also recognized a  distinction between the            case before it and other cases in which the state created the            risk faced by the plaintiff:                                         -17-                                          17                      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  to his                      abusive  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  played a part in creating the danger            to  the children and  rendered them more  vulnerable to harm.            Soto  thus contends  that  it  falls  outside  the  scope  of            DeShaney, in  that it "implicates the  alternate framework of            ________              1983  liability  wherein  a  plaintiff  alleges  that  some            conduct   by  an   officer  directly   caused  harm   to  the                                        ________            plaintiff."6   Pinder,  54  F.3d  at  1176 n.*  (emphasis  in                           ______            original);  see also Dwares v. City of New York, 985 F.2d 94,                        ________ ______    ________________            99 (2d Cir. 1993)("[T]hough  an allegation simply that police            officers  had failed  to act  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  colorfully  described  by  the  Seventh            Circuit in Bowers  v. De Vito, 686 F.2d  616 (7th Cir. 1982).                       ______     _______            While holding that  "there is no  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  position of  danger from private  persons and  then            fails  to  protect  him, .  .  .  it  is  as much  an  active            tortfeasor as if it had thrown him into a snake pit."  Id. at                                                                   ___            618.                                         -18-                                          18            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  the added  character of  [a] violation[]  of the            federal  Constitution."    Monahan v.  Dorchester  Counseling                                       _______     ______________________            Ctr., Inc., 961 F.2d 987, 993 (1st Cir. 1992).  In a creation            __________            of risk situation,  where the  ultimate harm is  caused by  a            third party,  courts must  be careful to  distinguish between            conventional torts and constitutional violations, as well  as            between  state inaction and action.  See id.; Pinder, 54 F.3d                                                 ___ ___  ______            at 1175-78.                        The scope  of any  permissible section  1983 action            based  on  a  state-created  danger  theory  is  a  difficult            question. See,  e.g., Pinder, 54  F.3d at 1175;  Monahan, 961                      ___________ ______                     _______            F.2d at  993-94.   Because we  find that  this  claim may  be            resolved  on immunity grounds,  we choose  not to  reach this            question.                       3. Qualified Immunity.                      ______________________                      Assuming arguendo that Soto had stated a claim that            Flores   and   Betancourt-Lebron   violated  her   children's            constitutional   rights,  the   issue  becomes   whether  the            defendants are entitled, as they argue, to qualified immunity            from suit.    There  are  two prongs  to  qualified  immunity            analysis.   See St. Hilaire  v.  Laconia, 71 F.3d 20, 24 (1st                        ___ ___________      _______                                         -19-                                          19            Cir. 1995).  First, the court must determine, as  a matter of            law, whether the constitutional right in question was clearly            established at  the time of the  alleged violation.  Id.   If                                                                 ___            the  right is  clearly established, the  court must  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   qualified            immunity appear  to misconstrue  the doctrine.   Soto argues,            with evidentiary  support, that  not only did  the defendants            violate Law 54  and the pertinent regulations, but  also that            they  knew or  reasonably should  have known  that they  were            violating it.  According to Soto, "[n]o good faith defense is            possible if  the official  knew he was  violating plaintiff's            rights."                      The  Supreme  Court has  considered,  and rejected,            this approach to qualified immunity.   Davis v. Scherer,  468                                                   _____    _______            U.S. 183, 193-95 (1984).  In Davis, the plaintiff argued that                                         _____            official  conduct that  contravened a  statute  or regulation            could  not be  objectively reasonable  because officials  may            reasonably  be expected  to  conform their  conduct to  legal            norms.  Id. at 193.  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  performance of  their duties."   Id. at                                                                   ___                                         -20-                                          20            195.   "Officials sued  for constitutional violations  do not            lose  their qualified immunity  merely because  their conduct            violates some statutory or administrative provision." Id.  at                                                                  ___            194; see also  Borucki v. Ryan,  827 F.2d 836, 847  n.18 (1st                 ________  _______    ____            Cir. 1987).  Accordingly, Soto's arguments with regard to Law            54, even if  her alleged facts are  true, do not resolve  the            qualified immunity question.  The focus is rather  on whether            there is clearly settled  law on the constitutional violation            at issue.      This  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  is doing  violates that right'"  and the  right            must  have been  "clearly  established  at  the time  of  the            defendants' alleged  improper actions, and  . .  . not .  . .            through the  use of hindsight."  Souza  v. Pina, 53 F.3d 423,                                             _____     ____            425 (1st Cir.  1995) (quoting Anderson v. Creighton, 483 U.S.                                          ________    _________            635,   640  (1987)).     The  issue   is  thus   whether  the            constitutional duty  not to affirmatively  abuse governmental            power so as to  create danger to individuals and  render them            more  vulnerable to  harm  was clearly  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  as a            viable mechanism for  establishing a constitutional  claim at                                         -21-                                          21            least  since 1979.  See White  v. Rochford, 592 F.2d 381, 383                                ___ _____     ________            (7th Cir.  1979) (finding Due Process  Clause violation where            "unjustified and arbitrary refusal of police officers to lend            aid  to children  endangered by  the performance  of official            duty .  . . ultimately  result[ed] in physical  and emotional            injury  to the  children");  see also  Cornelius  v. Town  of                                         ________  _________     ________            Highland  Lake, 880 F.2d 348  (11th Cir. 1989), cert. denied,            ______________                                  ____________            494  U.S. 1066 (1990); Wood  v. Ostrander, 879  F.2d 583 (9th                                   ____     _________            Cir. 1989),  cert. denied,  498 U.S.  938  (1990); Checki  v.                         ____________                          ______            Webb, 785 F.2d  534, 538  (5th Cir. 1986).  In DeShaney,  the            ____                                           ________            Supreme Court  acknowledged that  state  actions that  create            dangers or  render private  citizens more vulnerable  to harm            could amount to constitutional violations.  See DeShaney, 489                                                        ___ ________            U.S. at 201.  Since DeShaney, seven circuit courts of appeals                                ________            have  recognized  that state-created  dangers may,  in proper            circumstances,  give  rise  to  constitutional  claims  under            section 1983.  See Kneipp, 95 F.3d  at 1208 (citing cases and                           ___ ______            tracing history of state-created danger theory).                      While  this  history  would appear  to  militate in            favor of  finding that  there is clearly  established law  in            this  area, in 1991 the  First Circuit had  not yet addressed            the issue of state-created dangers.  The first case from this            court to  discuss the contours  of that doctrine  was Monahan                                                                  _______            v.  Dorchester Counseling Ctr., Inc., 961  F.2d 987 (1st Cir.                ________________________________            1992), and that case  held that, on the facts  alleged, there                                         -22-                                          22            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  not specifically addressed            the question.  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  clearly established            right from a somewhat confusing  body of caselaw through  the            use of  hindsight, or "permit claims of qualified immunity to            turn  on  the  eventual  outcome of  a  hitherto  problematic            constitutional  analysis."    Martinez-Rodriguez   v.  Colon-                                          __________________       ______            Pizarro, 54  F.3d 980, 989  (1st Cir. 1995).   The history of            _______            the   state-created   danger   theory,    although   recently            comprehensively described by the  Third Circuit in Kneipp, is                                                               ______            an   uneven  one.   The  distinction   between  affirmatively            rendering citizens more vulnerable to harm and simply failing            to protect  them  has been  blurred.   Moreover, courts  have            sometimes  found that  a  given action,  while rendering  the            plaintiff  more  vulnerable to  danger, did  not amount  to a            constitutional violation,  but instead should be  viewed as a            state law tort.   See, e.g., Cannon v. Taylor,  782 F.2d 947,                              ____ _____ ______    ______            950  (11th Cir. 1986).   It is more  recent judicial opinions            that have  begun to  clarify the  contours of  this doctrine.            See, e.g., Kneipp,  95 F.3d  at 1208-10; Pinder,  54 F.3d  at            ____ _____ ______                        ______            1174-1177.                                         -23-                                          23                      We conclude therefore that, in  1991, "the contours            of  the right were [not] sufficiently plain that a reasonably            prudent state actor  would have realized not  merely that his            conduct  might be  wrong, but that  it violated  a particular            constitutional right."  Martinez-Rodriguez,  53 F.3d at  988.                                    __________________            Accordingly, we find that the defendants are entitled  to the            protections of  qualified immunity,  and affirm  the district            court's grant of summary judgment  on plaintiff's substantive            due process claim.            B.  The Equal Protection Claim                __________________________                      In  DeShaney, the  Supreme Court  acknowledged that                          ________            "[t]he  State  may  not,  of  course,  selectively  deny  its            protective  services to certain disfavored minorities without            violating the Equal Protection Clause."  489 U.S. at 197 n.3.                      Soto alleges an  equal protection violation in  her            assertion  that  "[d]efendants  have  a  custom,  policy  and            practice of treating complaints from, or on  behalf of, women            threatened  with violence  in  domestic disputes  differently            from  other   complaints  of   violence.    Defendants   have            discriminated  on the  basis of  the  sex of  the complaining            victim."  The district court measured Soto's equal protection            claim7 under the standard for such claims brought by domestic                                            ____________________            7.  The  district  court  correctly  found  that  Valdivieso-                                                              ___________            Ortiz's  bar   on  section  1983  actions   for  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.                                           -24-                                          24            violence  victims that  was  first articulated  by the  Tenth            Circuit in  Watson v. City of Kansas City, 857 F.2d 690 (10th                        ______    ___________________            Cir.  1988),  and  subsequently  adopted  by  several   other            circuits.  Under the Watson standard, a plaintiff seeking  to                                 ______            defeat a motion for summary judgment 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.            Ricketts  v. City  of Columbia,  36 F.3d  775, 779  (8th Cir.            ________     _________________            1994)  (citing Watson, 857 F.2d at 694), cert. denied, 115 S.                           ______                    ____________            Ct. 1839 (1995).                      The  district court  found  that  Soto had  adduced            sufficient evidence to  create a genuine issue  as to whether            the police force  had a  custom or policy  of providing  less            protection  to victims  of  domestic violence  than to  other            assault  victims.  Soto, 878 F. Supp. at 329.  We agree.  The                               ____            court also found that plaintiff had failed to meet her burden            in opposing  summary judgment8  on either the  discriminatory            intent prong or  the causation prong of the  Watson standard.                                                         ______            Id. at 332.            ___                                            ____________________            8.  It  was  part  of  Soto's  prima  facie  case  to proffer            sufficient  evidence  of discriminatory  intent.   See, e.g.,                                                               __________            Lipsett, 864 F.2d at  896.  In opposing summary  judgment, it            _______            was  Soto's  burden to  adduce  sufficient  evidence of  that            intent  to   create  a  trialworthy  issue.     See  National                                                            ___  ________            Amusements,  Inc. v. Town of Dedham, 43 F.3d 731, 743-44 (1st            _________________    ______________            Cir.), cert. denied, 115 S. Ct. 2247 (1995).                     ____________                                         -25-                                          25                      In a matter of first impression  for this court, we            adopt the  Watson standard for section  1983 equal protection                       ______            claims brought  by domestic violence victims.   Several other            circuits have  considered similar  claims.   These  tragedies            follow  a  sadly  similar  pattern; an  abuse  victim,  after            repeatedly  seeking police  protection  from  her abuser,  is            gravely injured or  killed.  The victim, or  her next of kin,            claims  under  section  1983  that law  enforcement  policies            provide lesser protection to victims of domestic violence and            discriminate  on the basis of  gender.  See,  e.g, Navarro v.                                                    __________ _______            Block,  72 F.3d 712 (9th  Cir. 1996); Eagleston  v. Guido, 41            _____                                 _________     _____            F.3d 865 (2d Cir. 1994), cert. denied, 116 S.  Ct. 53 (1995);                                     ____________            Ricketts, 36 F.3d at  775; Brown v. Grabowski, 922  F.2d 1097            ________                   _____    _________            (3d  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  violence than  to victims  of other            crimes, that  gender discrimination  is a  motivating factor,            and that Soto was  injured by the practice.   See Watson, 857                                                          ___ ______            F.2d  at 694.  Soto has adduced evidence sufficient to create            an  issue as  to  whether there  was  a custom  or policy  of            providing  less  protection  to  domestic  violence  victims.            Closer questions are whether Soto adduces evidence sufficient                                         -26-                                          26            to permit the drawing of the necessary inference of an intent                                                                   ______            to  discriminate  against  women  and  whether Soto  provides            sufficient  evidence that  her  injuries were  caused by  the                                                           ______            alleged custom or policy.                       Soto's argument may be  summarized as follows:  (1)            that the Preamble to Law 54 explicitly recognizes that "women            are usually the victims of . . . conjugal abuse" and that Law            54  expresses  a  legislative  intent to  protect  women  and            children from  domestic violence;9 (2) that,  although 95% of            domestic violence  complaints involve females  as victims and            males  as perpetrators, one out of every four persons in jail            in Puerto  Rico for domestic  violence is female;10  (3) that            statements  of  the individual  in  charge of  the  police in            Puerto Rico, Betancourt-Lebron, demonstrate  both that Law 54            is not enforced as  are other laws and that  his disagreement            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  academic literature  for "its            ambitious and comprehensive  approach to domestic  violence."            See Rivera,  Puerto Rico's  Domestic Violence Prevention  and            ___          ________________________________________________            Intervention Law and the United States Violence Against Women            _____________________________________________________________            Act  of 1994:  The  Limitations of  Legislative Responses,  5            _________________________________________________________            Colum.  J. Gender & L. 78,  80 (1995).  Rivera also describes            how official resistance to  Law 54 has been an  impediment to            implementation.  Id. at 94-95.                             ___            10.  While  Soto admits  that  she presented  no evidence  of            arrest  rates  for  men  charged with  domestic  violence  as            compared  to arrest  rates  for women  charged with  domestic            violence, she  asserts that such  comparisons are  impossible            because Puerto Rico has chosen not to gather this data.                                          -27-                                          27            officers; (4) that there  was no police training  on domestic            violence prior to the events at issue; (5) that statements by            Sergeant   Orta,  and   Officers   Flores  and   Carrasquillo            acknowledge that  police officers in the  Rio Grande precinct            in  1991 did  not  enforce Law  54;  (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  reasons offered for            the  non-enforcement are  pretextual;  (8) that  differential            enforcement of Law  54 therefore permits  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  from mere  non-enforcement of  a law.   It  is a            truism   that   under   current   Equal   Protection   Clause            jurisprudence, a showing of disproportionate impact  alone is            not enough  to establish  a constitutional violation.11   See                                                                      ___            Washington  v. Davis,  426  U.S. 229,  242  (1976).     While            __________     _____            "impact  provides an  important starting  point" for  a court            seeking to determine if the adverse effect reflects invidious            gender-based  discrimination,  "purposeful discrimination  is                                            ____________________            11.  "The Court's refusal to treat  selective indifference as            an  equal protection  violation suggests  a preference  for a            stingy process  theory  over one  that invites  surreptitious            introduction of  impact analysis."  Klarman,  An Interpretive                                                          _______________            History of Modern Equal Protection, 90 Mich. L. Rev. 213, 299            __________________________________            (1991).                                         -28-                                          28            'the condition that  offends the  Constitution.'"   Personnel                                                                _________            Administrator v.  Feeney, 442 U.S. 256,  274 (1979) (citation            _____________     ______            omitted) (upholding  a veteran's preference  in civil service            hiring  where  98%  of   veterans  were  male).  "[T]he  mere            existence  of disparate  treatment --  even  widely disparate            treatment -- does not furnish adequate basis for an inference            that  the  discrimination  was   [impermissibly]  motivated."            Dartmouth  Review  v.  Dartmouth  College, 889  F.2d  13,  19            _________________      __________________            (1989);  see Siegel,  "The  Rule of  Love":  Wife Beating  as                     ___          _______________________________________            Prerogative  and   Privacy,  105  Yale   L.J.  2117,  2190-94            __________________________            (1996)(modern  doctrines of equal  protection have encouraged            the  development   of  facially  neutral  policies  that  are            difficult to challenge on constitutional grounds).                       A  domestic violence  victim  seeking  to prove  an            equal protection  violation must thus show  that the relevant            policymakers and actors  were motivated, at least in part, by            a  discriminatory purpose.   Feeney,  442 U.S.  at 274.   The                                         ______            Supreme Court has defined discriminatory purpose as being:                      more than intent as volition or intent as                      awareness of  consequences.  . .  .    It                      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    smoking   gun   of    an   overtly            discriminatory statement  by a decisionmaker, it  may be very                                         -29-                                          29            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  less likely to  result in            arrest than were stranger  assault complaints and evidence of            underenforcement of official domestic violence policy did not            constitute  evidence of  discriminatory  intent or  purpose);            Ricketts, 36 F.3d  at 781  (although over 90%  of victims  of            ________            domestic  abuse  are  women,  and police  statements  offered            support for  discriminatory intent toward  domestic disputes,            plaintiff  presented no  evidence  of intent  to discriminate            against women).     It is true, as Soto points out, that some            courts  have allowed the  equal protection claims of domestic            violence victims  to proceed  on an arguably  lesser showing.            See  Balistreri, 901  F.2d  at 701  (remark  of officer  that            ___  __________            plaintiff's  husband was entitled to hit  her because she was            "carrying on" suggested an animus against women sufficient to            allow plaintiff's  complaint to survive  motion to  dismiss);            Thurman  v. City of Torrington,   595 F.  Supp. 1521, 1528-29            _______     __________________            (D. Conn.  1984)(viewing equal  protection claim of  domestic            violence   victim   in   terms   of   "increasingly  outdated            misconception"  of husband's  prerogative  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  in subtle forms."  Triers of            fact  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).                                          -30-                                          30            wife)  (internal  quotation  marks  and  citation  omitted)).            However, we think that the stringent standards imposed by the            majority  of circuit  courts  are more  in  keeping with  the            Supreme  Court's approach  to equal protection  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  intent   from  the  mere  fact  of            differential  impact.  Nor is this the more common case where            a  plaintiff in a civil rights action seeks to use the courts            to upset the  majoritarian preferences expressed  through the            legislative  process.    Rather,  plaintiff  here  seeks  the            benefit  of  the  protection afforded  by  that  majoritarian            legislative process and argues that  she has been deprived of            that protection by the actions of individual public officials            motivated by a contrary, gender-discriminatory intent.                      The  statutory   language  of  Law   54,  and   the            legislative  intent  evident  from  its  preamble,  serve  to            differentiate  this case  from the  typical  disparate impact            case. The Law's prefatory "Statement of Motives" states that:                      Although  men as  well  as  women may  be                      victims of conjugal  abuse, studies  show                      that women are usually the victims of the                      aggressive  and  violent conduct  that we                      call   conjugal   abuse.   .   .   .  The                      investigators  figure  that  60%  of  all                      married women in  Puerto Rico are victims                      of conjugal abuse.                                                      -31-                                          31            Statement   of   Motives,  Domestic   Abuse   Prevention  and            Intervention  Act,  Act  No.  54  (Aug.   15,  1989)(citation            omitted).   This  recognition  that the  problem of  domestic            violence impacts women most heavily is reiterated in the text            of Law 54 itself:                      In developing  the public policy  on this                      matter, we  must  give attention  to  the                      handling   of   the   difficulties   that                      domestic  abuse presents,  especially for                                                 ______________                      women and children.                        __________________            P.R. Laws ann. tit.  8,   601 (Supp. 1995)  (emphasis added).            Law  54 also  explicitly  recognizes that  discrimination has            impeded   institutional   responses  to   domestic  violence:                      Domestic  abuse   is  one  of   the  most                      critical manifestations of the  effect of                      inequities  in the  relationships between                      men and women.  The discriminatory ideas,                      attitudes,  and   conduct  also  permeate                                                       ________                      those social institutions called  upon to                      _________________________________________                      resolve  and  prevent   the  problem   of                      _________________________________________                      domestic  abuse  and  its consequences.                        _______________________________________                      The  efforts  of  these  institutions  to                      identify,  understand  and  handle  abuse                      have been limited, and often inadequate.            Id. (emphasis added).            ___                                   In  the  more  usual   equal  protection  case,   a            plaintiff will  present evidence  of disparate impact  upon a            disfavored  group  in an  attempt  to  provide an  "important            starting  point" for  proof of  discriminatory intent.   See,                                                                     ___            e.g.,  Feeney, 442  U.S.  at 274.    Here, the  Statement  of            ____   _______            Motives of  Law 54  contains an explicit  legislative finding            that  domestic violence has a greater impact on women and the                                         -32-                                          32            Law  expresses  an intent  to ameliorate  that impact.   This            legislative finding is evidence that underenforcement  of Law            54  would indeed  have a  greater impact  on women  and might            therefore be motivated by gender discrimination.                      Moreover, the express legislative desire  to assist            women  victims of  domestic violence  and recognition  of the            problem of discrimination within responsible institutions are            important  factors to be considered in the "give and take" of            the   situation.     See  Feeney,   442  U.S.  at   279  n.24                                 ___  ______            (discriminatory  intent is  often "made  clear from  what has            been called  . .  . 'the  give and  take of  the situation'")            (citation  omitted).   The Supreme  Court has  said that  the            discriminatory  intent inquiry  should look  not only  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  that decisions  such as  Feeney and                                                               ______            Arlington  Heights are  rooted  in  an  appropriate  judicial            __________________            deference  to democratic  processes and  rational legislative            preferences, the  rationale of  deference is  less compelling            here.  See,  e.g., Feeney, 442 U.S. at 271  ("The calculus of                   ___   _____ ______            effects, the manner in which a particular law reverberates in            a   society,   is   a   legislative  and   not   a   judicial            responsibility. . . .[I]t  is presumed that 'even improvident                                         -33-                                          33            decisions  will  eventually be  rectified  by  the democratic            process. . . .'" (citations omitted)); Arlington Heights, 429                                                   _________________            U.S. at 265 ("[I]t  is because legislators and administrators            are  properly concerned  with  balancing  numerous  competing            considerations that  courts refrain from reviewing the merits            of  their decisions,  absent  a showing  of arbitrariness  or            irrationality.").   With  Law 54,  the legislature  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  and            part of the  problem.   Thus, underenforcement of  Law 54  by            those charged with  administering the  law may in  fact be  a            subversion   of   majoritarian   processes  for   individual,            illegitimate  motives.   We  believe, in  this context,  that            action by officials leading to non-enforcement of Law  54 may            be  some   evidence   of  discriminatory   intent  by   those                ____            individuals.  The policy Soto  challenges is, of course,  not            Law 54, but the  decision not to  implement the Law when  she            sought its  protections.   In determining what,  if anything,            motivated  that decision,  the  factfinder  may consider  the            purposes of  the Law itself, and  draw appropriate inferences            about what might motivate a decision not to effectuate  those            purposes.   As the Law  expressly seeks to  aid women victims            and  eradicate  institutional  discriminatory   attitudes,  a            decision  not  to  implement  the  Law  may  well  have  been                                         -34-                                          34            motivated not "in spite  of," but "because of"  the resulting            impact on women.  We  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  to the            actions of the officers in the Rio Grande precinct.  The  key            actor at the precinct level was Sergeant Orta.  Orta was told            Soto  was making a  Law 54 complaint, yet  he signed an Other            Services Report in violation  of Law 54 and took  no steps to            have Rodriguez arrested.  Nor did he take any steps to remove            Soto  and her children from harm's  way.  He knew that Flores            was  going to talk to Rodriguez and  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  substation  of the  Rio  Grande precinct.            Sergeant Orta  made statements  which a trier  of fact  could            easily  find  reveal  gender-discriminatory  stereotypes  and            biases.  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,  that I am in total                      disagreement  with that  Act.   I believe                      that  it   is  very  unjust   related  to                                         -35-                                          35                      aggressions  against women  and I  do not                      agree with that.                      Q: Why  do you believe it  is very unjust                      with  relation   to  aggressions  against                      women?                      A:  Sometimes  men,  including myself  of                      course,  but sometimes one  drinks on the                      outside or has a  woman on the side  or a                      friend  on  the  side,  and  one  has  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  is that the  law, in                      spite  of it  mentioning both  parties as                      being  able  to  complain, the  woman  is                      always   the   person  who   is  injured.                      Credibility  is given to the woman, where                      there  are  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  inference of racial  animus).  The  defendants here            have  not offered a  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  a  more   plausible  inference  [than   discriminatory            intent],  particularly  since  [defendant]  has  tendered  no            alternative   interpretation   supported   by   the   present                                         -36-                                          36            record.").   The comments were made by a person whose actions            allegedly contributed to the plaintiff's injury.                        Sergeant Orta's statements are very troubling.  His            hostility  to  enforcing  the  domestic  violence  law  could            certainly be understood as  arising from archaic  stereotypes            which  assume that  men  enjoy  certain prerogatives  towards            women,    including    beating    them.13        Gender-based            "classifications may  not  be used,  as  they once  were,  to            create   or  perpetuate  the   legal,  social,  and  economic            inferiority of women."  United States v. Virginia, 116 S. Ct.                                    _____________    ________            at  2275 (citation omitted).  Although Sergeant Orta is not a            defendant here,  he was  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'  so long as  he did            not inflict permanent injury upon her."  Siegel, "The Rule of                                                             ____________            Love": Wife Beating as Prerogative and Privacy, 105 Yale L.J.            ______________________________________________            at  2118.  This "right"  of  chastisement  was recognized  by            Blackstone's  Commentaries  in  the eighteenth  century.    1            William Blackstone, Commentaries *444.  A wife could turn  to                                ____________            a court for protection through  a writ of supplicavit.  Id.                                                                      ___            The doctrine of  chastisement was met with  some disfavor and            was not universally accepted in American  legal culture.  See                                                                      ___            Tapping  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  chastisement  had fallen  into  disrepute  in            America.     The  Supreme  Judicial  Court  of  Massachusetts            expressly repudiated  the doctrine in 1871.   Commonwealth v.                                                          ____________            McAfee,  108  Mass.  458  (1871).    Alabama  repudiated  the            ______            doctrine  that  same year.   Fulgham  v.  State, 46  Ala. 143                                         _______      _____            (1871).                                         -37-                                          37            evidence  of whether  the failure  to enforce  Law 54  at the            precinct level was based on discrimination.                        Law 54  was enforced sporadically, at  best, in the            precinct  in  1991.   Officer  Flores  testified that  almost            everyone in  his police detachment  "shied away from"  Law 54            complaints.   Asked  what  happened to  the victims  when the            officers did  not want to take  complaints, Flores responded,            "Well, they  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.  Sergeant Orta,            Flores's  direct  supervisor, stated  that,  despite Law  54,            domestic violence  complaints were not given great importance            in  1991 and were commonly  handled in the  station as "Other            Services" reports.  There would  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,  does not answer the  question as to            whether Officer  Flores, who is the defendant here, acted out            of   gender-based   discriminatory  intent   in   talking  to            Rodriguez.   It was  not within Flores's  responsibilities to            take Soto's complaint  or to  arrest Rodriguez.   We find  no            evidence to  suggest that  Flores's motivation in  talking to            Rodriguez was  based on gender  discrimination.  There  is no            evidence that  Flores himself attempted  to avoid enforcement            of  Law  54 at  all,  much less  for  discriminatory reasons.                                         -38-                                          38            Flores, despite  the lack of official  training, undertook to            get some  training for himself.  When Soto came to the Palmer            substation, Flores  called in the two  patrol officers, whose            responsibility  it was to take  the complaint and  act on it.            Flores described  Soto's complaint as  a Law 54  complaint to            the patrol officers, as he did to Sergeant Orta.  There is no            evidence  that  Flores  intervened and  talked  to  Rodriguez            because  of  a  gender-discriminatory  motive;   rather,  the            relationship between the two  men provides a strong inference            that Flores believed his friendship could  provide a basis to            resolve the  matter.  Sadly, he was wrong.  That he was wrong            does  not  turn  his  action into  one  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  be  held responsible  because  he  failed to  provide            adequate  training,  and  because  that failure  was  due  to            gender- discriminatory  bias.14  This claim  is based largely                                            ____________________            14.  We will assume  arguendo, but do not decide,  that there            was  evidence of a causal  link between lack  of training and            the events at  the precinct.   The street  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.  Both erroneously believed            that the victim had  to specifically request a Law  54 order,            and that  the victim had to  sign a closed report  if she did            not wish to  proceed to  get a restraining  order.   Sergeant            Orta  also testified  that he  did not  receive comprehensive                                         -39-                                          39            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:                      I  don't believe that [Law 54] is solving                      anything because it  has not lessened the                      fights  between husbands  and wives.   On                      the contrary, there  is evidence that  it                      continues to increase.             He  went on  to  say that  domestic  violence should  not  be            treated  with  laws  that  punish the  aggressors,  but  with            psychologists   and  social  workers.     This  statement  of            disagreement  with the  law's  decision to  criminalize  such            conduct  is not,  in  itself, a  statement of  discriminatory            intent.    Plaintiff posits  that  the  statement in  context            should be read as discriminatory.                      Soto's expert witness,  Mercedes Rodriguez,  opined            that, because  one of the  most dramatic changes  achieved by            Law  54 was  the criminalization  of domestic  violence, this            statement by  Betancourt-Lebron was  "one of the  most severe            blows, that a public official of [his] stature" could give to            the law.  Rodriguez  called these statements "a  deviation on            the  part  of the  institutional leadership."     It  was the            position of the Women's  Affairs Commission that Betancourt's            public  statements  "would promote  rank and  file's negative            attitudes  toward women  victims and  their rights  under Law                                            ____________________            training in Law 54  until 1993, two years after  the incident            at issue here.                                         -40-                                          40            54."  The  Superintendent's public statements, in  opposition            to   a  law  he  was  charged  with  enforcing,  were  widely            disseminated.   It is reasonable  to infer, as  Soto's expert            and   the  Women's  Affairs  Commission  suggest,  that  they            influenced many of the rank and file in the police.  But that            the statements  had influence does  not mean  that they  were            motivated by discrimination.                      Additionally,  Betancourt-Lebron acknowledged  that            he   foresaw  that  police   officers  would   have  problems            implementing  Law 54  because  its procedures  differed  from            other  laws,  and because  "of  active  resistance from  some            members of the Force toward the law."  There  is no evidence,            however, that he was aware of discriminatory attitudes at the            Rio  Grande precinct,  much less  that, in  the face  of such            knowledge, he failed to act to curb those attitudes.   Nor is            there  any comparative evidence as  to what, if any, training            Betancourt-Lebron implemented  when other new  laws went into            effect.    Evidence  that  Law  54,  which  was  specifically            intended to assist abused women, was handled differently than            other new  major law enforcement initiatives  could, perhaps,            support  an  inference of  discriminatory  intent.   But  the            record is devoid of such evidence.                      Somewhat  more   probative  of  Betancourt-Lebron's            intent  is   his  relationship  with   the  Women's   Affairs            Commission.   Betancourt-Lebron declined to meet,  for a year                                         -41-                                          41            after  approval   of  Law   54,  with  the   Women's  Affairs            Commission.    Law  54  directs the  Commission  to  evaluate            implementation  of the law and to promote the response of law            enforcement  agencies to victims.  See P.R. Laws ann. tit. 8,                                               ___               651 (Supp. 1995).   The initial report  of the Commission,            covering   the   first   year   of   implementation,   noted:            "Coordination  with  the  Police  of  Puerto  Rico  to  train            personnel  as to domestic  violence problems  and Law  54 has            been  virtually  impossible."    In  fact,  Betancourt-Lebron            returned none of the  numerous phone calls or letters  to him            from  the  Executive  Director  of the  Commission,  who  was            concerned  about  the  Police Department's  apparent  lack of            interest in implementing the law.                      In  the  end,  this  evidence,  while  painting  an            unwholesome  picture,  is  not  enough  to  meet  the  strict            standards  imposed   by   the  Supreme   Court  for   showing            discriminatory intent in equal  protection claims.  As Feeney                                                                   ______            says, the intent to be shown must be more than an  "awareness            of  consequences."  Feeney, 442  U.S. at 279.   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  group."  Id.  An  expression of disagreement                                      ___            with Law  54 and a  failure to meet with  the Women's Affairs            Commission, while  some evidence of  discriminatory intent on                                         -42-                                          42            the  part  of Betancourt-Lebron,  is too  slender a  stalk on            which to rest.                      Thus, we  conclude that plaintiff  has fallen short            of  her  difficult burden  of  proving discriminatory  intent            against  these   defendants  as   required  to  establish   a            constitutional  tort.   In  so saying,  we  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   matters.  Whether   this  deplorable   scenario  is            actionable  under Puerto Rican law  we leave, as  we must, to            others.                      Accordingly,  the grant of summary judgment against            plaintiff is affirmed.                         ________                                         -43-                                          43                      TORRUELLA,  Chief Judge (concurring). I concur with                      TORRUELLA,  Chief Judge (concurring).                                  ___________            the majority's opinion.  I  am of the view that  the District            Court should  be affirmed for substantially  the same reasons            and  grounds as  are stated  in the  opinion of  the District            Court.                                          -44-                                          44
