Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 86-2913
Higginbotham, Mansmann, and Greenberg, Circuit Judges.
At first blush, this appeal dealing with the denial of qualified immunity to defendant police officers for activity performed in the line of duty may appear to be but one of an unremarkable number of similar appeals. Instead, this case presents an issue exemplifying a growing trend of reliance on 42 U.S.C. § 1983 to bring an action against the police alleging that the policies used in handling domestic abuse cases violate the equal protection of women victims.*fn1
Here, the plaintiffs alleged that the officers pursued a policy of ignoring domestic abuse complaints and thereby violated the plaintiffs' decedent's right to equal protection of the laws by failing to arrest the former boyfriend of the decedent who subsequently killed her at her place of employment.
We have invariably recognized that police officers and other government officials performing discretionary functions possess a qualified immunity from suit which shields them so long as their actions could reasonably be thought to conform with the rights they are alleged to have violated. Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). Because the police policy or custom at issue here -- that allegedly police officers treat domestic abuse victims differently than other victims of violent crimes -- is not discriminatory toward women on its face, we must therefore apply the facially neutral policy analysis the Supreme Court first announced in Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886).
We conclude that a police officer loses a qualified immunity to a claim that a facially neutral policy is executed in a discriminatory manner only if a reasonable police officer would know that the policy has a discriminatory impact on women, that bias against women was a motivating factor behind the adoption of the policy, and, that there is no important public interest served by the adoption of the policy. We will remand to the district court for a determination consistent with our opinion.
Shortly after midnight on October 15, 1984, Alesia Hynson was shot and killed by her former boyfriend, Jamil Gandy, the father of one of her two children.*fn2 Prior to her death, Hynson had sought and obtained a temporary protection from abuse order,*fn3 which had expired.*fn4 Under Pennsylvania law, a defendant who violates a valid protection from abuse order can be arrested without a warrant and held in indirect criminal contempt. Pa. Stat. Ann., tit. 35 § 10190 (Purdon 1988 Supp.).
On October 14, 1984, Ms. Hynson accompanied her sister and her cousin to an "after hours club" in the City of Chester, leaving her children with a babysitter. While at the club Hynson was approached and threatened by Gandy. After Gandy left the club, he went to Hynson's residence and broke a window, attempting to gain entry. Frightened, the babysitter called the police, but no one responded. (The photocopy of a page in the police log book indicates the presence of an incorrect address.) When the women returned from the club and heard of Gandy's attempted entry, Hynson's sister called the police.
Three officers responded to the call: the defendants, Captain Lastowka and Officer Elder, and another policeman, Sergeant Chess, no longer a defendant. The women explained that Gandy had attempted to enter the apartment and had threatened Ms. Hynson at the club. When Hynson mentioned the protection from abuse orders but could not produce a valid order, one of the officers radioed the police department to verify if one had been issued.*fn5 There is a factual dispute concerning what happened next. The police offers aver that they, learning that there was no current order, asked Ms. Hynson if she wished to accompany them to the club to identify Gandy and that she refused and expressed a desire to leave with her children. The plaintiffs aver that the police officers never made this request and if so, it would have been foolhardy and dangerous for her to have accompanied them.*fn6 The police remained until she had departed for her mother's residence. Approximately twenty hours later, Gandy went to Ms. Hynson's place of employment where he shot and killed her.
The plaintiffs, the decedent's mother and children, brought this § 1983 claim seeking money damages against the City of Chester, the police department, individual officers and numerous other defendants not involved here, alleging that the defendants violated Hynson's rights to due process and equal protection of the laws.*fn7 The matter presently before us involves only the individual defendants Lastowka and Elder. The district court granted the police officers' motion for summary judgment on the due process claim based on a qualified immunity, but denied summary judgment for the officers on the equal protection claim. The police officers appeal from that portion of the district court's decision which denied them summary judgment on equal protection grounds.
Because this is an appeal from a denial of a motion for summary judgment on the basis of qualified immunity, we have jurisdiction to hear the appeal under the collateral order doctrine. In Mitchell v. Forsyth, 472 U.S. 511, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985), the Supreme Court noted that "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Because the qualified immunity is an "immunity from suit rather than a mere defense to liability," id. at 526, it is effectively lost if the case is permitted to go to trial. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949) (recognizing a small class of district court actions which determine rights separate from and collateral to rights asserted in the suit which ...