Civil Rights Claim Based on Failure to Enforce Protective Orders Proceeds

Price-Cornelison v. Brooks, No. 05-6140, 5/2/08 - Denial of defendant's summary judgment motion based on claim of qualified immunity in this Section 1983 case affirmed in part. This is a civil rights case against an undersheriff. The plaintiff complained about the undersheriff's refusal to enforce some protective orders she got against her long-time girlfriend. The undersheriff moved for summary judgment, arguing that he was entitled to qualified immunity on the claims. A denial of qualified immunitiy is immediately appealable. Basically, to avoid summary judgment on a claim, the plaintiff has to show that 1) the defendant violated a constitutional right that 2) was clearly established, or to put it another way, a constitutional right is clearly established if a reasonable officer would know that what he or she was doing was clearly unlawful.

In this case, the Tenth found that the undersheriff was entitled to qualified immunity on one claim -- her equal protection claim that she was treated differently (based on her homosexuality) from a heterosexual because the undersheriff did not enforce an emergency protective order and stop the girlfriend from removing property. Unfortunately, the plaintiff's case was sufficiently different from an allegedly simiilar case that she lost on the grounds that she had failed to prove the undersheriff would have enforced the order had she been an ordinary married woman, basically because the emergency order she had obtained gave the girlfriend until October 17 to gather her stuff and move out and the plaintiff called and complained on Oct. 16, and the order was not yet effective on that date.

However, the case is remanded for further proceedings on the other claims. Plaintiff also alleged that the undersheriff refused to enforce her permanent protective order on November 3 because she was lesbian and a victim of domestic violence. The court concluded she adequately established this right and the right was clearly established based on case law stating that, although there is no constitutional right to police protection, the police cannot discriminate in the provision of such protection.

Finally, the plainitff had argued that the undersheriff unlawfully vioalted her fourth amendment rights by threatening to arrest her on Oct. 16 if she tried to stop the girlfriend from removing the plaintiff's stuff from the house, along with the girlfriend's stuff. The undersheriff, by doing this, unlawfully assisted the girlfriend in seizing the plaintiff's property. Furthermore, the undersheriff should have known that what he was doing was wrong based on a couple of prior Tenth Circuit decisions.