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Nearing v. Weaver

Oregon Supreme Court
670 P.2d 137 (Or. 1983)


Facts

Henrietta Nearing (plaintiff) separated from her husband and the following year he entered her home without permission and hit her. She had her husband arrested by police officer Martin Weaver (defendant) and the circuit court issued a restraining order against the husband, preventing him from entering Nearing’s home in the future. The next month, Nearing’s husband again entered the home in violation of the restraining order. The husband did damage to the property and actually attempted to take away Nearing’s children. Nearing reported this to Weaver and after verifying the validity of the restraining order, Weaver declined to arrest Nearing’s husband because he had not personally seen the husband on the premises. Subsequently, Nearing’s husband returned to her home three times, seeking entry into the house. On one of these occasions, the husband assaulted Nearing’s friend and did damage to the friend’s van. Nearing again reported this to Officer Weaver and Weaver told her that the police would arrest the husband “because it was [his] second offense,” but they never did. Not long after, the husband threatened to kill Nearing’s friend and assaulted him again. The Oregon Abuse Prevention Act (APA) mandated that officers arrest a person without a warrant when the officer has probable cause to believe that the person has violated an order meant to prevent further abuse. Nearing’s restraining order qualified under the statute. Nearing brought suit against Weaver for failing to enforce the judicial restraining order, which resulted in severe emotional distress to her and her children. The circuit court granted summary judgment to Weaver and the court of appeals affirmed. Nearing appealed.

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Holding and Reasoning (Linde, J.)

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Dissent (Peterson, J.)

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