Whether city had policy of giving low priority to domestic violence 911 calls is fact issue

Law Reporter, Sep 1999

CIVIL RIGHTS

Whether city had policy of giving low priority to domestic violence 911 calls is fact issue.

Fajardo v. County of Los Angeles, _ F.3d _, No. 9655699, 1999 WL 351101 (9th Cir. June 3, 1999).

The Ninth Circuit Court of Appeals held that an issue of material fact exists whether a city had a policy of giving low priority to domestic violence 911 calls, and if so, whether such a policy has a rational basis.

Here, plaintiffs sued a sheriff and county under 42 U.S.C. 1983, alleging they gave lower priority to domestic violence 911 calls than to non-domestic violence 911 calls. The trial court granted defendants summary judgment. The appellate court reversed, finding that genuine issues of material fact remained as to whether defendants had a custom of not classifying domestic violence calls as emergencies.

Navarro v. Block, 72 F.3d 712 (9th Cir. 1995), 39 ATLA L. Rep. 103 (Apr. 1996). On remand, the trial court declined to determine whether defendants had such a policy, having previously held that it met the rational basis test, and granted defendants judgment on the pleadings.

Reversing, the Ninth Circuit said the trial court had ruled defendants' practice of treating domestic violence calls differently from other calls passed the rational basis test by assuming that ( 1 ) it is rational to limit emergency response to in-progress calls and (2) domestic violence rarely reaches the level of severe injury or near death-the level of injury for which emergency assistance is provided.

The court noted that here, plaintiffs alleged defendants had distinguished between domestic violence 911 calls and other 911 calls regardless of whether violence was in progress. Thus, the rationality of distinguishing in-progress and not-in-progress calls is irrelevant, the court said. Moreover, the court concluded that whether domestic violence rarely results in severe injury or death is not dispositive.

Rather, the critical issue is whether domestic violence crimes result in severe injury or death less frequently than other crimes considered 911 emergencies. The court said the trial court had erred by equating domestic violence calls with not-in-progress calls and assuming that domestic violence crimes are less injurious than other violent crimes.

The court also rejected the proposition that absent evidence of sex discrimination as a motivating factor, plaintiffs have no constitutional claim. The court cited a Tenth Circuit case alleging police had failed to offer the same protection to domestic violence victims as victims of other violent crime. That court, while granting defendants summary judgment on a sex-based discrimination claim, held there were disputed issues of material fact concerning whether the police had a policy or custom of affording less protection to victims of domestic violence. That case is in perfect harmony with the disposition here, the court said.

Accordingly, the court remanded for a hearing to determine whether the city had a policy or custom of giving lower priority to domestic violence calls than to non-domestic violence calls and if so, whether that policy or custom has a rational basis.

Marco E. Lopez, San Jose, Cal.