Judicial Deference or Bad Lawmaking? Why Massachusetts Courts Will Not Impose Municipal Liability for Failure to Enforce Restraining Orders

Abstract

The authors take up the challenge that was thrown down by the Ford v. Town of Grafton court. The first part of this Article examines the somewhat tortured and fascinating history of the Massachusetts Tort Claims Act. It then describes the arguments Catherine Ford made, how the court responded, and why it responded as it did. In Part II, Massachusetts' strong commitment to protecting and assisting victims of domestic violence is examined. A variety of legislative, executive and judicial initiatives that demonstrate commitment are described, but the Massachusetts General Laws Chapter 209A, the restraining order statute, is emphasized. The article reveals a clear legislative and judicial intent to grant victims of domestic violence meaningful protection from abuse. Part III of this Article analyzes cases from several other states that mirror the factual circumstances of Ford.

This Article also reflects upon the judiciary's repeated invitations to the legislature to clarify or amend the immunity legislation, and suggests several ways that the domestic violence and immunity laws could be changed in a manner consistent with judicial and legislative intent. Lastly, this Article concludes with a warning. Without clarifying the relationship between domestic violence laws and the Massachusetts Tort Claims Act in a manner that enables courts to hold police and other municipal actors liable for failing to enforce restraining orders, such orders offer no protection to victims.

Keywords: Torts, domestic violence, restraining orders, Massachusetts Tort Claims Act, Ford v. Town of Grafton