Police failure to protect a prosecution witness from violence falls short of a violation of due process rights, the 1st Circuit Court of Appeals held.
Due process protections come into play only when the government “has played a role in creating the danger or has enhanced the danger to an individual,” the court said.
Iris Rivera filed a federal suit on behalf of her 15-year-old daughter, Jennifer, a prosecution witness murdered to prevent her testimony about a homicide near her home.
The Rivera family claimed the state of Rhode Island, the city of Providence, and the Providence Police Department bore the responsibility for their failure to protect Jennifer from harm.
Several days before a trial was to begin, Jennifer was shot dead in front of her house to stop her from testifying that she saw Charles Pona, the defendant in the trial, fleeing from the scene of a murder in August 1999.
Jennifer’s mother filed a federal lawsuit alleging the police had violated Jennifer’s constitutional substantive due process right to life by failing, after promising to do so, to protect Jennifer from the danger posed by the murder suspect if she agreed to testify against him.
The civil rights lawsuit named Providence Police Chief Urbano Prignano for failing to train and properly supervise his officers; and the city for having a policy and practice of not protecting endangered witnesses who were given assurances of protection.
Providence police detectives confirmed they had been repeatedly informed of the death threats made against Jennifer and promised to protect her.
But the circuit panel said Jennifer did not have a constitutional right to protection as a witness and consequently could make no claim against the government or any officer.
The three-judge panel said there is a split among the circuits on whether the government can be held responsible for witness protection. At least three circuit courts-the 6th, 7th and 9th-”have recognized the existence of a constitutional violation when, on particular facts, the state fails to protect against private violence under this state created danger theory.”
The 5th Circuit “has flatly rejected the theory” and the 4th Circuit has discussed the theory without rendering an interpretation, the 1st Circuit panel said.
