Suit Blames Cops After Ex-Boyfriend Shot Cda Woman Women’s Advocates Say Police Treat Domestic Violence Differently

City police say they did what they could to protect Peggy Jo Smith from domestic violence. They want her federal lawsuit against them dismissed.

But the Coeur d’Alene woman, nearly killed in 1994 by an angry ex-boyfriend, insists police could have prevented the shooting. Smith was gunned down 45 minutes after officers responded twice to her home, refused to arrest her harasser, then assured her she would be safe.

If Smith prevails, victim’s rights groups say the case could set a national precedent for the way domestic violence calls are handled. The Battered Women’s Justice Project, National Clearinghouse of Battered Women, Women Against Rape and Northwest Women’s Law Center are all monitoring the lawsuit. Earlier this month, attorneys for the Coeur d’Alene Police Department asked a judge to throw the case out of court. It is expected to go to trial in October.

“We feel the applicable case law pretty well indicates what the duties of law enforcement officers are and that those duties were met by the police officers in this case,” said Charles Hosack, the attorney representing the City of Coeur d’Alene, the Police Department and officers named in the suit filed last March. Jason MacNeil, the responding officer and a main target of Smith’s allegations, resigned from the department last May.

Legally, the police have no duty to protect individuals from private violence except in two exceptions, if there’s a “special relationship” such as police custody or if police enhanced or created danger.

Smith claims police are liable for increasing the danger to her and her two children by emboldening Olson and then verbally assuring her she’d be safe.

Her case also alleges police treat domestic violence calls differently than other crimes, violating her constitutional right to equal protection.

“Historically, police have treated instances of domestic violence as civil matters and not as crimes and that’s not just the Coeur d’Alene Police Department, but around the country,” said Moscow attorney Craig Mosman, who represents Smith. “There still remains a feeling among those who enforce the law that this is a private matter, not a crime, and they treat the same acts differently than if it were among strangers.”

At the time of the incident, Patrick Olson had a pending battery charge against him for allegedly choking Smith during an argument. The day of the shooting, Smith called police that morning to complain that he had been over in the middle of the night, called several times in the morning, then again showed up at her house.

Police responded promptly. But shortly after they left, Olson called and came over a third time. This time Smith called 911 from a neighbor’s house, since her phone had been disabled that morning. When Olson tried to go inside, Mike Bair, a friend staying with Smith for safety, pinned down Olson while waiting for police, according to his court affidavit.

When two officers arrived, Smith and Bair repeatedly asked to have Olson arrested for trespassing or stalking. But police declined, saying they could just as easily arrest Bair for assault since he threw Olson down and prevented him from leaving.

Bair said police officers also refused to look at other evidence, including muddy footprints from where Olson allegedly had been watching Smith the night before and the phone box they believed Olson disabled that morning.

Before leaving, Smith asked the officers whether the family would be safe going to a nearby restaurant. According to Bair and Smith’s statements, police assured Smith her family would be safe, that officers would keep an eye on Olson. In court records, police said no city officer had contact with or knew of Olson’s whereabouts after Smith’s 11:38 call.

Smith said she had plans to get an unregistered room at Templin’s resort, hide her car and take her children to a relative’s until the following Monday when she could renew a lapsed restraining order.

But after reassurances from the police, she went instead to the restaurant. The shooting occurred about two hours later.

“We allege that their actions put her in a worse position than had they done nothing at all,” Mosman said. “She’d been better hiding out where she’d planned than staying around based on police promises that they would watch for him.”

Though police said the department has an unwritten “pro-arrest” approach to domestic violence, not arresting Olson shouldn’t be considered an action that created danger, Hosack said in court documents.

“The officers did not create the danger (Smith) faced from her former boyfriend, but rather the police merely allegedly failed to protect (Smith) from Olson or failed to arrest and incarcerate him. For this they are not liable as a matter of law.”

Coeur d’Alene police handle more than 30,000 calls annually. With only about a half dozen officers patrolling daily, some question how much time officers should spend protecting individuals.

“From a philosophical standpoint the real issue here is what does society want out of law enforcement,” Hosack said. “Does it want its law enforcement officers involved in law enforcement or does it want its law enforcement office acting as a social welfare office?”

But domestic violence organizations say victims aren’t getting proper protection because law enforcement treats domestic violence less seriously than violence against victims who don’t know their assailants.

“If this had been her calling saying ‘I don’t know this person, he’s been stalking me and driving around the house for three hours and now he’s pounding at my door,’ they would have responded differently,” said Cathy Zavis, an attorney with the Northwest Women’s Law Center.

Zavis’s interested in the case because it’s “particularly egregious and the harm caused PJ Smith was particularly awful,” she said.

Smith, who now works part time but still has shrapnel imbedded in her and scarring from the shooting, is seeking damages for both physical and emotional injuries.

“I think it is a great case to really try to challenge the law and see whether or not the legal system will confront the problem of police enforcement of domestic violence.”

Hosack maintains there are few new legal issues raised, but rather the case is drawing attention because of its “media pizazz”

“It’s high profile,” Hosack said. “You see a lot of press on domestic violence and it’s an emotionally charged, highly publicized issue. That’s the distinguishing thing in this case.”

, DataTimes