Jena Balistreri v. Pacifica Police Department Al Olsen, Police Chief, Individually and as a Police Agent

855 F.2d 1421 57 USLW 2136 Jena BALISTRERI, Plaintiff-Appellant, v. PACIFICA POLICE DEPARTMENT; Al Olsen, Police Chief, individually and as a police agent, Defendants-Appellees. No. 87-1969. United States Court of Appeals, Ninth Circuit. Submitted March 16, 1988. * Decided Aug. 23, 1988. Jena Balistreri, Pacifica, Cal., pro se. Todd A. Roberts, Mark Bonino, Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Redwood City, Cal., for defendants-appellees. Appeal from the United States District Court for the Northern District of California. Before SCHROEDER and FLETCHER, Circuit Judges, and WATERS, ** District Judge. FLETCHER, Circuit Judge: 1 Jena Balistreri appeals, pro se, the district court's dismissal of her 42 U.S.C. Sec. 1983 complaint for failure to state a claim. The district court's decision is published at 656 F.Supp. 423 . We reverse. FACTS 2 Balistreri's complaint, prepared by an attorney, alleges the following facts. 3 On February 13, 1982, Balistreri was severely beaten by her husband. The Pacifica police officers who responded to her call for assistance removed the husband from the home, but refused to place him under arrest, and were "rude, insulting and…

dissenting:

I conclude that plaintiff fails to allege facts sufficient to establish a “special relationship” between the police and herself, and therefore I respectfully dissent.

I agree with the majority that state officials have a constitutional duty to protect a particular member of the public when a “special relationship” between the authorities and that citizen is created. I also agree that among the factors courts have considered in determining whether such a relationship arises are: (1) whether the plaintiff is in custody; (2) whether the state was aware of a specific risk of harm to the plaintiff; (3) whether the state affirmatively placed the plaintiff in a position of danger; or (4) whether the state affirmatively committed itself to the protection of the plaintiff. See Ketchum v. County of Alameda, 811 F.2d 1243, 1247 (9th Cir.1987); Escamilla v. Santa Ana, 796 F.2d 266 (9th Cir.1986); Jensen v. Conrad, 747 F.2d 185, 194 (4th Cir.1984). However, I disagree that the facts pleaded in Balistr-eri’s complaint give rise to a constitutional duty of police protection or that she was denied due process of law.

The majority opinion indicates that the existence of the…

Jena Balistreri appeals, pro se, the district court’s dismissal of her 42 U.S.C. § 1983 complaint for failure to state a claim. The district court’s decision is published at 656 F.Supp. 423 . We reverse.

FACTS

Balistreri’s complaint, prepared by an attorney, alleges the following facts.

On February 13, 1982, Balistreri was severely beaten by her husband. The Pacifi-ca police officers who responded to her call for assistance removed the husband from the home, but refused to place him under arrest, and were “rude, insulting and unsympathetic” toward Mrs. Balistreri. One of the officers stated that Mrs. Balistreri deserved the beating. Although Balistreri was injured seriously enough to require treatment for injuries to her nose, mouth, eyes, teeth and abdomen, the officers did not offer Balistreri medical assistance.

Sometime after the incident, an unidentified Pacifica police officer pressured Bal-istreri into agreeing not to press charges against her husband.

Throughout 1982, Balistreri continually complained to the Pacifica police of instances of vandalism and of receiving hundreds of harassing phone calls. She named her husband, from whom she was now divorced, as the…