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Badia v. City of Casa Grande3/16/1999
on applies here because the Casa Grande Police Department took custody of Perez by arresting, transporting, and confining her against her will. Perez's death, however, occurred after she had been released from custody, and defendants' actions had neither so "restrain liberty that it render unable to care for self" nor limited her "freedom to act on own behalf" once she was released. Id. Perez's situation is analogous to that of Joshua DeShaney, a victim of prior child abuse who had been taken into the state's custody temporarily but was then released to his father, whose subsequent beatings of Joshua caused permanent brain damage. Although Perez's freedom to act was limited while she was in custody, she was no longer in custody when Murrillo murdered her, at which time defendants no longer had any constitutional duty to ensure her safety and well-being. DeShaney. See also Henke v. Superior Court, 161 Ariz. 96, 101, 775 P.2d 1160, 1165 (App. 1989) (based on DeShaney's holding that "only a person in the state's custody can maintain a section 1983 claim for injuries caused by a third party," court ordered dismissal of § 1983 claim against parole officer who allegedly failed to properly supervise and control parolee).
Thus, DeShaney negates rather than supports plaintiff's claim. Moreover, none of defendants' alleged acts or omissions placed Perez in any worse position than she had been in when the officers arrested and took her into custody. See Gazette v. City of Pontiac, 41 F.3d 1061, 1065 (6th Cir. 1994) ("The final part of the DeShaney analysis requires us to ask whether the City or the police officers rendered [the victim] any more vulnerable to the danger she was already in by their actions."). She had been with Murrillo and Harrison at that time, and they later picked her up at the substation. There is no evidence that Perez refused to go with Murrillo or expressed any concern about doing so when she was released. Assuming Perez had told "the police" earlier that night that she did not want Murrillo to pick her up and that he had threatened to kill her a month earlier, as Harrison testified, and even assuming that hearsay evidence is admissible, it does not establish that defendants rendered Perez more vulnerable to danger by releasing her or permitting her to go with Harrison and Murrillo when they picked her up. See, e.g., Armijo by and through Chavez v. Wagon Mound Public Schools, 159 F.3d 1253, 1263 (10th Cir. 1998) (" f the danger to the plaintiff existed prior to the state's intervention, then even if the state put the plaintiff back in that same danger, the state would not be liable because it could not have created a danger that already existed."); Penilla v. City of Huntington Park, 115 F.3d 707 (9th Cir. 1997), cert. denied, Settles v. Penilla, ___ U.S. ___, 118 S. Ct. 2059 (1998) (§ 1983 claim arises if state actor's affirmative conduct places plaintiff in danger and officer acts with deliberate indifference to plaintiff's safety); Estate of Stevens v. City of Green Bay, 105 F.3d 1169, 1177 (7th Cir. 1997) (no liability under § 1983 when plaintiff failed to show that state "cut off all avenues of aid without providing a reasonable alternative" or left decedent in situation more vulnerable to danger than he had been before police involvement).
Plaintiff further contends that she "presented uncontroverted evidence that [the acts of the police in releasing Perez], in addition to many others, were in gross deviation from generally accepted police customs and practices" and "direct and proximate cause " Perez's death. Contrary to plaintiff's argument, those allegations, albeit supported by opinions from her police procedures expert, neither establish an "affirmative duty towar
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