Domesticating Due Diligence: Municipal Tort Litigation's Potential to Address Failed Enforcement of Orders of Protection
45 Pages Posted: 6 Oct 2012 Last revised: 8 Jul 2015
Date Written: October 3, 2012
Orders of protection (OPs) are designed to protect victims of domestic violence from further abuse and to encourage the arrest of the perpetrator in the event of a violation of the order. In some states, orders of protection mandate arrest. However, the United States Supreme Court has found these mandatory arrest provisions to be a discretionary function of law enforcement, refusing to allow victims to recover from municipalities with failed enforcement policies and procedures. Jessica (Gonzalez) Lenahan, the victim at the center of the Supreme Court's ruling, took her case to the Inter-American Commission, which issued recommendations that the United States bring its enforcement policies in line with the international nation-state liability standard of "due diligence." Advocates and litigants alike have been seeking innovative ways to use the Commission's recommendations to carve new pathways for victims of failed OP enforcement to seek redress.
This article argues that municipal tort liability suits informed by the international principles set forth in the Commission's recommendations and filed in municipal courts may offer a new path to recovery aside from federal constitutional claims, which have been precluded, and federal legislation, the effectiveness of which has been limited by the courts. Using New York State jurisprudence to illustrate the common features of the international "due diligence" and domestic municipal tort liability frameworks, I suggest a litigation strategy that may shift domestic courts away from the current, victim-focused liability assessment and toward a theory centered on the duty of the state to prevent foreseeable harms resulting from their flawed OP enforcement policies and procedures.
Keywords: domestic violence, order of protection, municipal tort liability, due diligence
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