Valdez v. City of New York

960 N.E.2d 356, 18 N.Y.3d 69

Opinions

OPINION OF THE COURT

Graffeo, J.

After her estranged boyfriend shot her, causing serious injuries, plaintiff Carmen Valdez sued the City of New York for failing to provide her with adequate police protection to prevent the attack. The primary issue before us is whether there was sufficient evidence in the record to establish the existence of a special relationship between Valdez and the police. Because we conclude that there was not, we affirm the order of the Appellate Division, which reversed the judgment in plaintiffs’ favor and dismissed the complaint.

I

In July 1996, after a prior order of protection expired, plaintiff Carmen Valdez obtained a second order of protection against her former boyfriend, Felix Perez, in Bronx Criminal Court. She delivered the order to the Domestic Violence Unit at her local police precinct and asked that it be served on Perez. At that time, Valdez met Officers Torres and Pereira—the two individuals assigned to the unit. Valdez later received a telephone call from Officer Pereira confirming that Perez had been served with the court order.

According to Valdez, about a week later, Perez telephoned her at around 5:00 p.m. on a Friday evening and threatened to kill her. Perez had made various threats in the past—threats that prompted Valdez to secure an order of protection—but Valdez viewed this threat as an escalation of his hostility because he had not previously threatened to kill her. Valdez immediately left her apartment with her two young sons, planning to go to her grandmother’s house in the Bronx. On the way to her car, however, she stopped at a pay phone and contacted the Domestic Violence Unit to alert the police to the latest threat by Perez. She contended that she spoke with Officer Torres, who told her that she should return to her apartment and that the police would arrest Perez “immediately.”¹

After speaking to Officer Torres, Valdez returned to her apartment with her children where she remained for the rest of the evening. She did not hear from the police that evening, nor did she contact the precinct to inquire whether Perez had been located or arrested. The night passed without incident. The following day—a Saturday—Valdez and the children remained in their apartment most of the day. At about 10:45 p.m. that evening, Valdez stepped out of the apartment and into the hallway of her building intending to take out the garbage when she was confronted by Perez brandishing a gun. He ushered her back into the apartment doorway and, tragically, shot her two or three times, injuring her face and arm. The two children witnessed the shooting but were not physically harmed. Perez then turned the gun on himself and committed suicide.

Valdez commenced this action against the City of New York claiming that, based on her telephone conversation with Officer Torres, the City had undertaken a “special relationship” with her that created a duty of care; that the City was negligent in failing to arrest Perez prior to the attack; and that its negligence was a proximate cause of the shooting. Valdez also brought claims on behalf of the children, contending that the “special relationship” extended to them and that they could recover damages for negligent infliction of emotional distress because they were in the zone of danger at the time of the attack.

After issue was joined, the parties engaged in discovery but the City did not file a pretrial motion to dismiss or seek summary judgment dismissing the complaint. Instead, in 2006, the case proceeded to a jury trial. At the commencement of the trial, the City moved to dismiss the complaint on the ground that plaintiff had failed to state claims upon which relief could be granted asserting, among other arguments, that Valdez’s allegations failed to establish the existence of a “special relationship” giving rise to a duty of care because there was insufficient evidence to show that any reliance on the purported statements of Officer Torres was justifiable. The City renewed this argument at the close of plaintiffs’ proof. Both of these motions were denied.

At trial, Valdez offered her account of the events preceding the shooting, while the City asserted that Valdez had not contacted the police the night before the shooting and, as such, that the police neither promised to arrest Perez nor directed Valdez to return to her apartment. Consistent with its assertion that it never received a complaint from Valdez on the night in question, the City did not offer any evidence of investigative or other police activities taken in response to the telephone call. The jury apparently credited plaintiffs’ proof as it returned a verdict apportioning fault 50% to the City and 50% to Perez, awarding damages in the amount of $9.93 million. Beyond the finding of negligence, the jury also determined that the City had acted in reckless disregard of plaintiffs’ safety. The City moved to set aside the verdict on a number of grounds, reiterating its contention that the evidence had been insufficient to support a finding of “special relationship.” Supreme Court declined to disturb the verdict on liability but modified the damages award in a minor respect (the parties also stipulated to reduce the award for past medical expenses).

The City appealed to the Appellate Division, which reversed the judgment and vacated the verdict in a divided decision (74 AD3d 76 [2010]). Three justices concluded that plaintiff failed to establish a special relationship because the proof was inadequate to support a finding that Valdez’s reliance on the officer’s promise to arrest Perez was justifiable. The two dissenting justices reasoned that there was sufficient evidence of justifiable reliance and would have sustained the liability verdict, albeit modifying the judgment to vacate the reckless disregard finding. Given that this Court’s decisions in McLean v City of New York (12 NY3d 194 [2009]) and Dinardo v City of New York (13 [2009]) were issued while this case was pending on appeal to the Appellate Division, the plurality, concurring and dissenting opinions all discussed those two cases. In particular, having concluded that plaintiffs demonstrated the existence of a special relationship, the dissent further addressed whether the failure of the police to arrest Perez or take other action to prevent the attack constituted a ministerial or discretionary act. Characterizing that act as ministerial, the dissent would have permitted plaintiff to recover.

Plaintiff appealed to this Court as of right on the two-justice dissent.

IL

We begin with the observation that it is undisputed that this case involves the provision of police protection, which is a classic governmental, rather than proprietary, function. That being so, the facts potentially implicate two separate but well-established grounds for a municipality to secure dismissal of a tort claim brought against it by a private citizen injured by a third party. The first relates to the fundamental obligation of a plaintiff pursuing a negligence cause of action to prove that the putative defendant owed a duty of care. Under the public duty rule, although a municipality owes a general duty to the public at large to furnish police protection, this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created. This is an offshoot of the general proposition that “[t]o sustain liability against a municipality, the duty breached must be more than that owed the public generally” (Lauer v City of New York, 95 NY2d 95, 100 [2000]). We have deemed it necessary to restrict the scope of duty in this manner because the government is not an insurer against harm suffered by its citizenry at the hands of third parties. Thus, in order to pursue her negligence action against the City in this case, plaintiffs were required to allege a special duty—which they attempted to do by contending that the telephone conversation with Officer Torres created a special relationship.

The second principle relevant here relates not to an element of plaintiffs’ negligence claim but to a defense that was potentially available to the City—the governmental function immunity defense. Although the State long ago waived sovereign immunity on behalf of itself and its municipal subdivisions, the common-law doctrine of governmental immunity continues to shield, public entities from liability for discretionary actions taken during the performance of governmental functions (Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428 [2011]; Lauer, 95 NY2d at 99; Tango v Tulevech, 61 NY2d 34, 40 [1983]).² This limitation on liability reflects separation of powers principles and is intended to ensure that public servants are free to exercise their decision-making authority without interference from the courts. It further

“reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury” (Mon v City of New York, 78 NY2d 309, 313 [1991] [citation omitted]).

As a result, “[a] public employee’s discretionary acts—meaning conduct involving the exercise of reasoned judgment—may not result in the municipality’s liability even when the conduct is negligent” (Lauer, 95 NY2d at 99) .³ In other words, even if a plaintiff establishes all elements of a negligence claim, a state or municipal defendant engaging in a governmental function can avoid liability if it timely raises the defense and proves that the alleged negligent act or omission involved the exercise of discretionary authority. It is also clear from our precedent that the governmental function immunity defense cannot attach unless the municipal defendant establishes that the discretion possessed by its employees was in fact exercised in relation to the conduct on which liability is predicated (see Mon, 78 NY2d at 313; Haddock v City of New York, 75 NY2d 478, 484 [1990]).

As we recently observed in McLean v City of New York (12 NY3d at 203), when both of these doctrines are asserted in a negligence case, the rule that emerges is that “[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general” (see also Dinardo, 13 NY3d at 874). McLean did not announce a new rule—it merely distilled the analysis applied in prior cases such as Lauer (95 NY2d 95; see also Garrett v Holiday Inns, 58 NY2d 253 [1983]).

In Chief Judge Kaye’s decision in Lauer, we expressly rejected the contention “that a ministerial breach by a governmental employee necessarily gives rise to municipal liability” (95 NY2d at 99). Lauer clarified that, even when municipal action is ministerial—thereby “removing] the issue of governmental immunity from [the] case” (id. [citation omitted])—the plaintiff in a negligence action must nonetheless establish that the municipality owed a duty of care by demonstrating the existence of a special duty beyond the obligation owed the public at large. In fact, in Lauer it was undisputed that the municipal negligence in question—the medical examiner’s failure to deliver a corrected autopsy report to law enforcement authorities— amounted to a ministerial act (id.). Yet the Court applied the special duty analysis to determine whether the municipality could be answerable in negligence, concluding that plaintiffs claim could not be sustained because the medical examiner owed no special duty of care.⁴ It is clear from the analysis in Lauer that the special duty rule assists a plaintiff in establishing a duty of care and that it operates independently of the governmental function immunity defense, which precludes liability even when all elements of a negligence claim—including duty— have been proved. The special duty doctrine is therefore not an exception to governmental function immunity.

Despite the analysis presented in Lauer, there has been lingering confusion concerning the relationship between the special duty rule (establishing a tort duty of care) and the governmental function immunity defense (affording a full defense for discretionary acts, even when all elements of the negligence claim have been established). Some of this is attributable to municipal defendants, who have often waived the immunity defense by failing to timely raise it—causing courts to adjudicate claims based exclusively on special duty analysis. In McLean, we recognized our own role in blurring the distinctions between the two theories, acknowledging the existence of potentially misleading dicta in some of our prior cases (12 NY3d at 203). For this reason, we have endeavored here to explain the rationale underlying each doctrine in the hope of bringing further clarity to this complex area of the law.

This Court is not, however, unanimous in this effort. It appears that Chief Judge Lippman views the special duty rule as an exception to the governmental function immunity defense, at least in some circumstances. We did not adopt this view in Lauer, McLean and Dinardo—and decline to do so today. Judge Jones concludes that the governmental function immunity defense should be inapplicable to police protection cases, reasoning that a plaintiff should be able to recover in that category of claims as long as a special duty is established. We reject this approach as well.⁵

The dissenters seem to be concerned that, if governmental function immunity is available in police protection cases, plaintiffs will never be able to recover in negligence. Plaintiffs have similarly opined that the application of the McLean syllogism in this category of negligence cases will preclude plaintiffs from holding municipalities liable—a fear that is predicated on the theory that police work invariably involves the exercise of discretion. We do not share this view because we do not accept the premise underlying it. We know of no decision of this Court holding that police action (or inaction, as it might be more accurately characterized in this case) is always deemed to be discretionary under the discretionary/ministerial duty analysis.⁶

In order to prevail on a governmental function immunity defense, a municipality must do much more than merely allege that its employee was engaged in activities involving the exercise of discretion.

“Whether an action of a governmental employee or official is cloaked with any governmental immunity requires an analysis of the functions and duties of the actor’s particular position and whether they inherently entail the exercise of some discretion and judgment. If these functions and duties are essentially clerical or routine, no immunity will attach” (Mon, 78 NY2d at 313 [citations omitted]).

Beyond the role the individual employee plays in the organization, the availability of governmental function immunity also turns on “whether the conduct giving rise to the claim is related to an exercise of that discretion” (id.). The defense precludes liability for a “mere error of judgment” (see Haddock, 75 NY2d at 485) but this immunity is not available unless the municipality establishes that the action taken actually resulted from discretionary decision-making—i.e., “the exercise of reasoned judgment which could typically produce different acceptable results” (Tango, 61 NY2d at 41). For example, in Haddock, this Court, held that governmental function immunity was unavailable to a municipality that failed to establish that the asserted negligence—the retention of an employee—was the consequence of an actual decision or choice. Instead, the proof showed that the municipality had failed to adhere to its own personnel procedures and had not “made a judgment of any sort” upon learning that the employee had a criminal record and had lied about it (Haddock, 75 NY2d at 485). In some police protection cases, municipalities will be able to establish that discretionary authority was exercised and in others they will not—just as is true in other types of claims.

III.

With these principles in mind, we turn to the special duty issue in this case in recognition of the fact that, if plaintiffs cannot overcome the threshold burden of demonstrating that defendant owed the requisite duty of care, there will be no occasion to address whether defendant can avoid liability by relying on the governmental function immunity defense.⁷ Here, the City repeatedly asserted that plaintiffs failed to allege a prima facie case of negligence. It argued that, even assuming plaintiffs’ allegations to be true, no special relationship had been created between plaintiffs and the police sufficient to overcome the public duty rule and supply the requisite special duty of care.

To establish a special relationship, plaintiffs were required to show that there was:

“(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” (Cuffy v City of New York, 69 NY2d 255, 260 [1987] [citations omitted]).

The City focused its argument on the fourth element of the test—the “justifiable reliance” requirement. We have previously emphasized the importance of this factor, describing it as “critical” because it “provides the essential causative link between the ‘special duty’ assumed by the municipality and the alleged injury” (id. at 261). Where timely contested by the defense, the issue of whether a plaintiff offered sufficient evidence to establish a special relationship is a question of law for the court to resolve (id. at 263 [finding “as a matter of law” that plaintiffs’ injuries were not the result of justifiable reliance on assurances of police protection]).⁸

Assuming, as we must given the procedural posture of this case, that the telephone call between Valdez and Officer Torres occurred as Valdez described, the officer’s statement did not create a special relationship. It was not reasonable for Valdez to conclude, based on nothing more than the officer’s statement that the police were going to arrest Perez “immediately,” that she could relax her vigilance indefinitely, a belief that apparently impelled her to exit her apartment some 28 hours later without further contact with the police. The record indicates that Perez threatened plaintiff over the telephone—there is no indication that plaintiff knew where he was calling from or that she conveyed any information relating to his whereabouts to the police.⁹

Thus, it would not have been reasonable for Valdez to have relied on the police promise to arrest Perez “immediately” in a literal sense since his location had to be discovered. In fact, the record shows that Valdez understood that the police would first have to find Perez before he could be arrested since she testified at trial that she did not call Officer Torres when she returned to her apartment because she believed Torres would not be at the precinct but would be out looking for Perez. At best, since Valdez had no reason to believe that the police knew where Perez was, the officer’s statement could reasonably be viewed only as a promise to look for Perez and arrest him if he was located. It was not reasonable for plaintiff to relax her vigilance based on this type of representation that was dependent on locating Perez.

Furthermore, Valdez’s own statements concerning her expectations undercut the claim of justifiable reliance. Based on her prior experience with the Domestic Violence Unit, Valdez testified that she expected the police to call her back to confirm the arrest—and she acknowledged that she received no such call prior to the attack (nor did she contact the precinct to inquire concerning the status of the search). Because Valdez expected to receive confirmation that Perez had been taken into custody, it is difficult to reconcile her contention that she was nonetheless justified in relaxing her vigilance when more than a day passed with no word of the expected arrest. As is evident from the analysis in Cuffy, a promise by police that certain action will be forthcoming within a specified time period generally will not justify reliance long after a reasonable time period has passed without any indication that the action has occurred.

For all of these reasons, this case is distinguishable from Mastroianni v County of Suffolk (91 NY2d 198 [1997]), on which plaintiff relies. In Mastroianni, the police responded to a call at the victim’s residence and found that her estranged husband, who had allegedly been inside her home, had taken refuge at the home of a neighbor. After speaking to both the victim and the husband, the police advised the victim that they would not make an arrest but assured her that they would do what they could for her if there were additional problems with her husband. The police then remained on the scene, across the street from the home—an action that permitted the victim to reasonably believe that the police were nearby and able to monitor the situation and that they would provide protection if the need arose that evening. The fact that the police did not leave the area and therefore remained in a position to lend additional assistance provided a basis, beyond the promise, for the victim to relax her vigilance and reasonably rely on their continued protection. When the police briefly left for a dinner break without informing the victim, the husband entered her home and stabbed her to death.¹⁰ In Mastroianni, the police had promised to assist the victim and then remained in the area, thereby initially making good on their promise and .providing a basis for the victim to believe that they could—and would— provide police protection if needed. No comparable circumstances were present here.

Since there were no extraneous factors beyond Officer Torres’ promise that can be said to have contributed to plaintiff s sense of security, plaintiffs’ justifiable reliance argument is based on the contention that it was reasonable for Valdez to rely on Torres’ statement that Perez would be arrested immediately simply because the officer said so. In other words, plaintiffs suggest that it is always justifiable for a citizen to rely on an assertion made by a police officer ¹¹ Were we to credit this argument, we would conflate two separate elements of the special relationship test because proof that a promise was made would simultaneously fulfill both the “promise” and “justifiable reliance” elements of the four-part test. This we must decline to do. Although, in a colloquial sense, we should be able to depend on the police to do what they say they are going to do—and no doubt the police have an obligation to attempt to fulfill that trust—it does not follow that a plaintiff injured by a third party is always entitled to pursue a claim against a municipality in every situation where the police fall short of that aspiration. The element of justifiable reliance must be assessed through the prism of reasonableness and liability will not always extend to a municipality for injuries caused by the violent acts of a third party.

Because we have concluded that plaintiffs’ proof was insufficient to establish a special relationship and demonstrate that the City owed them a special duty of care, we agree with the Appellate Division that Supreme Court should have dismissed the negligence claims for failure to establish a prima facie case. Having determined that the duty element was lacking, we have no occasion to address whether the City preserved its right to assert the governmental function immunity defense by raising it in the trial court and, if so, whether it could have avoided liability under such a defense on the rationale that the alleged negligence involved the exercise of discretionary authority.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

1

. At trial, the City of New York denied that the police received a telephone call from Valdez on the evening before the shooting. In particular, Officer Torres testified that he did not speak to Carmen Valdez that night, nor was her name recorded in the log in which calls made or received by members of the Domestic Violence Unit were documented on July 19, 1996. Thus, the City denied that any promise was made to Valdez or that the police suggested that she return to her apartment. However, since the jury reached a verdict in plaintiffs’ favor, for purposes of this appeal we must view the facts in the light most favorable to them and therefore assume that the conversation occurred as recounted by Valdez.

2

. There are many other types of immunity defenses that may be raised by governmental entities, including quasi-judicial immunity, legislative immunity and prosecutorial immunity. Here, we are concerned only with governmental function immunity.

3

. “[Discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” (Tango, 61 NY2d at 41).

4

. Chief Judge Lippman suggests that the special duty rule has never been applied in a case involving ministerial action (Lippman dissent at 91). But Lauer was a ministerial action case, as was Garrett (58 NY2d at 263 [issuance of certificate of occupancy relating to property with blatant and dangerous code violations could not be viewed as a discretionary act]). Although the ministerial/discretionary act dichotomy is not discussed in the decision, De Long v County of Erie (60 NY2d 296 [1983]) also falls in this category, as we noted in Lauer (95 NY2d at 100 [De Long involved “liability for ministerial failure to process ‘911’ call”]). In De Long, a municipality was held liable for failing to provide police protection after a 911 operator—who promised to send the police “right away”—erroneously recorded the caller’s address and dispatched the police to the wrong location.

5

. Judge Jones does not explain why the police—who put themselves in harm’s way and are often called upon to make snap judgments with life and death consequences—should be entitled to less protection from tort liability than other government employees, such as the medical examiner in Lauer or the social services worker in McLean. To be sure, assuming plaintiff has established the existence of a duty of care, the ministerial acts of a police officer can give rise to liability, just like those of any other public employee. But we cannot discern from our precedent any basis for holding governmental entities accountable for the discretionary acts of police officers when immunity would attach to the acts of other municipal workers that exercised comparable discretionary authority.

6

. In fact, the suggestion that it is seems particularly inapt here where plaintiffs’ proof suggested that the police took no steps to investigate an allegation that an order of protection had been violated and the City offered no contrary evidence indicating that the police actually exercised discretionary authority in their assessment or response to the complaint (instead, the City’s theory was that plaintiff never called Officer Torres and therefore never reported the violation). Even before the Legislature enacted a statute imposing certain mandates on the police in relation to enforcement of orders of protection (see GPL 140.10), this Court had recognized that the police are “obligated to respond and investigate” in some manner when they are advised that such an order has been violated (Sorichetti v City of New York, 65 NY2d 461, 470 [1985]). Although Chief Judge Lippman appears to share plaintiffs’ view that the application of governmental function immunity precludes recovery because police action will invariably be deemed discretionary (Lippman dissent at 92-93), he paradoxically cites statutory authority for the proposition that, once advised that an order of protection had been violated, the police “were . . . required to make an arrest” (Lippman dissent at 87). Needless to say, the obligations imposed on police to investigate or take other action upon receipt of such an allegation would be integral to determining the scope of a police officer’s discretionary authority, which may well be circumscribed. Indeed, the two Appellate Division justices that reached the discretionary versus ministerial act issue in this case concluded that the failure of the police to respond could not be characterized as a discretionary act. Although we need not resolve that issue, the concerns expressed by plaintiffs and the dissenters about the impact of McLean in police protection cases appear unwarranted.

7

. That was the situation in McLean and Dinardo—plaintiffs in those cases failed to establish that a special duty existed, thereby rendering any further discussion concerning the availability of the governmental immunity defense unnecessary.

8

. Although both dissents rely extensively on Cuffy, they also suggest that we are somehow exceeding our jurisdiction by assessing the sufficiency of plaintiffs’ proof on the justifiable reliance element (see Lippman dissent at 88; Jones dissent at 95). In Cuffy, just as in this case, the claim proceeded to trial and a verdict was issued in plaintiffs’ favor. We nonetheless reversed and dismissed the complaint based on our conclusion that the justifiable reliance element of the special relationship test had not been established as a matter of law. Here, the City moved to dismiss the complaint for failure to state a prima facie case and subsequently moved to set aside the verdict on the rationale that, even assuming the facts proffered by plaintiffs to be true, proof on the justifiable reliance element was lacking. This raised a question of law appropriate for review in this Court.

9

. This would be a different case if the malefactor was in the presence of the police when a promise of immediate arrest was made. For example, if the police arrived at the scene of a domestic violence incident, removed the offender from the home and then announced an intention to make an immediate arrest, a victim hearing such a promise would have ample basis to rely on it. In that situation, unlike this one, the victim would have a reasonable basis to believe that the police were in a position to promptly fulfill the promise.

10

. Plaintiffs’ reliance on Sorichefti (65 NY2d 461) is similarly misplaced. That case was decided before this Court had articulated the four-part special relationship test and it is not clear that the Court applied the “justifiable reliance” element as it is currently constituted (see also De Long, 60 NY2d 296 [in case where jury was never charged on reliance element and defendant failed to object, Court suggested in dicta that there was sufficient evidence of reliance]). Moreover, Sorichetti—which involved an assault by a father on his daughter during weekend visitation—is distinguishable on its facts. Due to the acrimonious relationship between the parties, the father had been ordered to pick up and drop off the child at the local police precinct. Given the father’s history of abusive behavior and recent threats that he would harm the child, the mother waited at the precinct on a Sunday afternoon and, when the father did not return the child promptly at 6:00 P.M. as directed, she asked the police to go to the father’s home and investigate. The police strung her along, repeatedly indicating that, if the father did not appear with the child, they would take action. Thus, instead of going to the father’s home to look for her daughter, the mother remained at the police station. It was not until 7:00 P.M. that it became clear that the police did not, in fact, intend to lend any assistance; at that time, the mother’s reliance on the police statements would no longer have been justifiable. But, by then, the harm had already occurred—at 6:55 P.M. the father’s sister went to the father’s home and discovered that, sometime between 6:00 P.M. and 6:55 P.M., he had severely injured the girl.

11

. In his dissent, Chief Judge Lippman further suggests that it was reasonable for plaintiff to rely on the order of protection—and he asserts that our holding today suggests that such orders “may not be reasonably relied upon” (Lippman dissent at 88). But Valdez does not claim that she relaxed her vigilance in justifiable reliance on the order of protection—she contends that she relied on the promise that Perez would be arrested immediately. The order of protection was certainly significant in this case since it afforded the occasion for the promise of arrest given that Perez’s threats amounted to a violation of the order (and its existence would be of even greater importance if we reached the discretionary/ministerial act issue). Undoubtedly, orders of protection are important law enforcement tools. But such orders are not self-executing and must be enforced by individual police officers, a fact well known to Valdez. The issue in this case is whether Valdez reasonably relaxed her vigilance based on what was, in substance, a promise to look for Perez and arrest him if he were located—not whether orders of protection may reasonably be relied on in the abstract.