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Finding that courts must take a narrow reading of the “state-created danger” theory, a federal judge has dismissed a civil rights suit brought by relatives of a woman who was murdered and whose 13-year-old daughter was raped by a convicted sex offender who just days before the attack had attempted to turn himself in to police. In his 49-page opinion in Leidy v. Borough of Glenolden, U.S. District Judge Stewart Dalzell of the Eastern District of Pennsylvania found that while police and prison officials may have been negligent, incompetent or even lazy when they failed to arrest Gerald Bennett, the civil rights claim was flawed because “the failure of the government to protect citizens from crime, without more, does not violate the 14th Amendment.” But despite clearing police of any liability, Dalzell’s opinion includes some harsh comments about the quality of the police work — especially Glenolden Police Chief Edward Cooke — and the lack of training for employees at the Delaware County prison. “The defendants here surely will win no awards for good law enforcement … . We think that the behavior of Police Chief Cooke was not only reckless but bad enough that a reasonable jury could conclude that it shocks the conscience,” Dalzell wrote. Dalzell found that Cooke “released Gerald Bennett in conscious disregard for the risk that he posed to the public.” He also found that Cooke “did not care” what Bennett was on probation for or what he had done to violate the terms of his probation. “He was not even concerned whether Gerald Bennett was a sexual predator or a senior member of Al Qaeda,” Dalzell wrote. “The record can be read to support the disturbing conclusion that what Chief Cooke was most concerned with was showing Bennett the door when learning that the prison did not have the warrant,” Dalzell wrote. But evidence of conduct that shocks the conscience was not enough to save the case, Dalzell found, because lawsuits brought under the state-created danger theory also require proof that the conduct of the public officials “created an opportunity for harm that would not otherwise have existed.” The suit alleged that Roxanne Leidy was murdered by Bennett just six days after Bennett walked into the Glenolden police station to surrender on a bench warrant that was issued when he failed to attend sex offender treatment classes. The suit said Bennett wasn’t arrested, but instead was allowed to leave, when police and prison officials could not confirm with the county prison that the bench warrant existed. In an expert report, criminologist Henry T. O’Reilly concluded that if police had not missed their chance to arrest Bennett, the murder and rape would not have occurred. “Threads of missed opportunities and failure to perform routine investigative steps wove themselves into a braid of events which ultimately culminated in a horrible tragedy which most certainly would have been averted if everyone in the system had done their jobs properly,” O’Reilly wrote. Plaintiffs’ attorney Jerome Brown argued that Bennett was a fugitive who was attempting to surrender on a bench warrant, and that the police officers who put him back on the street therefore created the opportunity to murder Leidy and rape her daughter. Dalzell found that while Brown’s argument had some appeal, he was forced to reject it. “At first glance, when state actors put back on the street a fugitive who was surrendering on an open warrant, it appears that they actually created the opportunity for a crime to occur,” Dalzell wrote. “But when we recall the entire context — that Bennett was a sex offender before these state actors became involved and that the state put him in prison, released him on parole, and issued a bench warrant for his arrest, but failed to accept his voluntary surrender — it becomes clear that the wrongs of which plaintiffs complain is that the state did not do enough to protect them from Bennett,” Dalzell wrote. Under the 14th Amendment, Dalzell found, “defendants were under no duty to obtain the warrant in the first place.” The police decision not to make an arrest didn’t create the opportunity for the murder and rape, Dalzell found, because “had no warrant ever issued, Bennett would still have committed his offenses.” Nonetheless, Dalzell endorsed one aspect of the plaintiffs’ theory, finding that “a jury could readily find that had the defendants arrested him, Bennett would not have had the opportunity to commit these offenses.” The testimony of Mary Beth DePaulis, the probation officer, showed that “once Bennett was held on the bench warrant the initial hearing on the probation violation would not have taken place for at least two weeks and Bennett would have been kept in custody until then.” At that hearing, Dalzell noted, DePaulis testified that she would likely have recommended that Bennett have his parole revoked, or, at the very least, that he undergo a psychiatric evaluation. Dalzell also found the plaintiffs had no valid claims against county prison officials and the Wackenhut Corrections Corp., a private company that was contracted in 1996 to run the prison. Although Wackenhut’s employee may have been incompetent, Dalzell found that the conduct did not shock the conscience. “The Delaware County Board of Prison Inspectors’ acquiescence as Wackenhut transferred responsibility for retrieving warrants to poorly-trained entry-level workers could reasonably be seen as rendering the Delaware County Board of Prison Inspectors and Wackenhut responsible,” Dalzell wrote. “The lax training of the entry-level workers tasked with handling the warrants led directly to the booking specialist, Michelle Shannon, missing Bennett’s warrant,” Dalzell wrote. Although the prison’s policies may have led to Bennett’s release, Dalzell found that “the defendants cannot be held liable because their behavior did not cause the deprivation of a constitutional right.” Echoing his finding on the conduct of the police, Dalzell found that “the failure of the government to protect citizens from crime, without more, does not violate the 14th Amendment.” Shannon was “an entry-level employee with no law enforcement experience and no formal training on handling of warrants,” Dalzell found. “While reasonable jurors could find her negligent, we believe that such jurors could not find her carelessness in searching for the warrant to shock the conscience. Employee incompetence, being not unusual, is not shocking and is not the kind of outrageous abuse of power against which the 14th Amendment Due Process Clause guards.”

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