Unpublished Disposition, 874 F.2d 816 (9th Cir. 1989)

MEMORANDUM^* 

Michele J. Leach appeals the district court's dismissal on summary judgment of her 42 U.S.C. § 1983 suit against the City of Portland and Portland Police Officer E. Little. Leach claims the City and Officer Little violated her right to due process by refusing to enforce a temporary restraining order awarding her custody of her children because the order was not entered into the Law Enforcement Data System. Leach also contends Officer Little violated her due process rights during a dispute with her husband over the custody of the children. We affirm.

ANALYSIS

I. Failure to Enforce the Temporary Restraining Order

Leach contends that Officer Little's actions and the City's policy of refusing to enforce temporary restraining orders that have not been served and entered into the Law Enforcement Data System deprived her of her liberty interest in the custody of her children in violation of due process. As that contention lacks merit as a matter of law, summary judgment is appropriate under Fed. R. Civ. P. 56(c).

Leach does allege infringement of a constitutionally protected interest: "existing Supreme Court and Ninth Circuit precedent establish that a parent has a constitutionally protected liberty interest in the companionship and society of his or her child. The state's interference with that liberty interest without due process of law is remediable under section 1983." Kelson v. City of Springfield, 767 F.2d 651, 655 (9th Cir. 1985). However, there is no foundation in the law for the appellant's contention that the City's policy is unconstitutional.

The Supreme Court has recently indicated that failure by the police to perform an affirmative duty to protect a citizen from the actions of a third party is not a constitutional violation. Deshaney v. Winnebago County, 109 S. Ct. 998 (1989). Moreover, the policy is consistent with the provisions of Oregon's Abuse Prevention Act, ORS 107.720(1), which requires service and proof of service upon the respondent of a restraining order, and provides that upon receipt of a copy of a restraining order and proof of service, the county must enter the order into the Law Enforcement Data System, which constitutes notice to law enforcement officers. The City's policy is also consistent with ORS 133.310(3), which requires officers to make warrantless arrests if the police officer has probable cause to believe that a restraining order exists and a true copy of the order and proof of service on the person has been filed as required in ORS 107.720.

II. Removal of Children to Protective Custody

A parent's constitutional liberty interest in the maintenance of the familial relationship must be balanced against the interests of the state and against the interests of the child. Woodrum v. Woodward County, 866 F.2d 1121 (9th Cir. 1989). ORS 419.569(1) (b) provides that a child may be taken into temporary custody by a peace officer if the child's condition or surroundings reasonably appear to be such as to jeopardize the child's welfare. Officer Little saw that Leach's husband was yelling and swearing and that neither parent would allow the other to leave the property with the children. Officer Little testified at deposition that he decided to take the children into protective custody not because he believed Leach would harm them, but because he did not know where she would take the children so that they would be safe from their father. The fact that Leach had arranged to transport the children to a shelter was not disclosed to Officer Little. Leach has produced no evidence that under these circumstances, the officer was unreasonable in concluding the children's surroundings jeopardized their welfare. The reasonableness of Officer Little's actions entitled him to immunity from suit under section 1983. Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 3039 (1987).

AFFIRMED.