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A woman who claims she was pulled from a car, sexually assaulted, and robbed during “Greek Week” while two Philadelphia police officers stood by and watched cannot bring a civil rights suit under the “state-created danger” theory because the police did nothing to make her situation worse, a federal judge has ruled. “While the lack of response from the police officers to plaintiff’s cries for help, if true, is unconscionable, it does not create a violation of plaintiff’s right to substantive due process,” U.S. District Judge Harvey Bartle III wrote in his 12-page opinion in Jones v. City of Philadelphia. In the suit, JoEllyn Jones claimed that on the night of July 12, 1998, she was a passenger in a car with four other young women traveling on Washington Avenue when a group of males pulled her from the car, stripped her of all her clothes and stole $30 — all while police officers Marjorie Giddings and Donald West watched and did nothing to stop the attack. Jones’s lawyer, Bruce G. Cassidy, described the incident as a “whirling,” a practice, he said, that has become common during Greek Week when African-American fraternity and sorority members from around the country “converge on Philadelphia to engage in partying which has traditionally included the manhandling and molesting of females.” In a complaint to the Philadelphia police internal affairs division, Jones claimed that Officer Giddings approached her after the assault was over and said: “If you were advertising your mind instead of your behind, this wouldn’t have happened.” But Deputy City Solicitor Robin B. Arnold moved for dismissal, arguing that “a governmental entity has no constitutional duty to come to the aid of its citizens, even where such aid may be necessary to secure life, liberty or property interests.” Judge Bartle found that the question for the court was whether Jones had stated a valid claim under the state-created danger theory. Bartle looked first to the U.S. Supreme Court’s seminal 1989 decision in DeShaney v. Winnebago County Department of Social Services in which the justices rejected a civil rights claim brought on behalf of a 4-year-old boy whose father had beaten him so badly that he was left severely retarded. While the Department of Social Services had good reason to suspect child abuse, it allowed Joshua DeShaney to remain with his father. But the justices found there was no “special relationship” between the agency and the boy since he was not in its custody. In rejecting the claim, the high court also seemed to offer the beginning of a definition of a state-created danger claim. “The affirmative duty to protect arises not from the state’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf … . While the state may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them,” the DeShaney court said. Since DeShaney, Bartle found that the 3rd U.S. Circuit Court of Appeals has addressed the state-created danger issue on several occasions. In D.R. v. Middle Bucks Area Vocational Technical School, the court found that two school girls who were routinely assaulted by the boys in their shop class had no claim since neither a special relationship nor a state-created danger existed even though school attendance in Pennsylvania is compulsory. The D.R. court explained that “the school defendants did not create plaintiffs’ peril, increase their risk of harm, or act to render them more vulnerable to the student defendants’ assaults.” But in Kneipp v. Tedder, the 3rd Circuit for the first time found that a case had properly stated a valid state-created danger claim where an obviously intoxicated woman and her husband were stopped on the street on a cold night and police sent the husband home, only to abandon the woman who was later found unconscious and suffering from hypothermia. The plaintiffs in Kneipp claimed that, by voluntarily assuming responsibility for her protection when the police officers allowed her husband to leave for home by himself, they affirmatively created a danger and increased the risk that she might be injured when they later abandoned her. The 3rd Circuit agreed and said a jury must decide “whether the police officers affirmatively placed [the wife] in a position of danger.” In 1997, the 3rd Circuit announced a four-part test for deciding whether a plaintiff had stated a valid state-created danger claim. In Morse v. Lower Merion School District, the court said the plaintiff must prove that (1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; and (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party’s crime to occur. Judge Bartle found that Jones’ case was legally most similar to DeShaney where the state officials were accused of failing to come to the aid of a child who they knew was being abused. As in DeShaney, Bartle said, the complaint in Jones’ case did not accuse the police of taking any “affirmative action” to create the incident. The police did not organize or participate in the Greek Picnic festivities or in any of the wrongdoing, Bartle noted, and they never detained Jones or directed her to do anything. “Their presence on Washington Avenue that night did not put plaintiff in a worse position than she would have been in had they not been on the scene,” Bartle wrote. Quoting DeShaney, Bartle said, “the purpose of the 14th Amendment is ‘to protect the people from the state, not to ensure that the State protect[s] them from each other.’ “ Bartle found that Jones had not satisfied the fourth prong of the state-created danger test because “she has not stated in her complaint any facts that the state actors used their authority to create an opportunity that otherwise would not have existed for the third party’s crime to occur.” The crimes against Jones were committed by private citizens, Bartle said, and the police did nothing to make it worse. “If the police officers’ presence did not deter the assault on plaintiff, surely their absence would not have done so,” Bartle wrote. In his final paragraphs, Bartle expressed sympathy for the plaintiff, but said the law was solidly against her. “We in no way condone what allegedly happened to plaintiff and sympathize with her plight. The perpetrators unquestionably committed serious crimes, if the complaint is to be believed. Nonetheless, the Supreme Court has ruled that there is no redress under Section 1983 against the City of Philadelphia and its police for their omissions here.”

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