NEARING V. WEAVER
670 P.2d 137 (1983)
NATURE OF THE CASE: Nearing (P) appealed the order of the Court of Appeals (Oregon),
which affirmed a grant of summary judgment to Weaver (D), city and police officers, for
failure to follow the mandatory arrest provisions of Or. Rev. Stat. 133.310(3) for
violation of a domestic protective order. The trial court held that the defenses of official
discretion and official immunity precluded potential liability for psychic and physical
injuries.
FACTS: Nearing (P) (and her two minor children) were separated from her husband in
November 1979. On April 16, 1980, the husband entered P's home without permission and struck
P. P reported this to the police. Officer Weaver (D) arrested the husband for assault. The
circuit court issued an order restraining the husband from molesting Ps or entering the
family home. The order was served on the husband, and a copy of the order and proof of
service were delivered to D. On May 12 and 13, 1980, the husband again entered P's home
without permission, first damaging the premises, and thereafter attempting to remove the
children. P reported these incidents to D and asked him to arrest her husband because she
was frightened of his violent proclivities. The officer confirmed the validity of the
restraining order and the damage to P's home but declined to arrest the husband on the
ground that the officer had not seen the husband on the premises. Three more times this same
scenario played itself out. The husband returned to P's address, sought entry to the home,
assaulted P's friend and damaged his van. A few days later the husband, telephoned P and
threatened to kill her friend. D told P he would be arrested but no action was taken. P sued
D. The complaint alleges that Ds' failure to arrest P caused her to suffer 'severe emotional
distress and physical injuries' and that the children have suffered 'acute emotional
distress,' have been 'upset,' have had difficulty sleeping, and have suffered 'psychological
impairment.' Ds pleaded the affirmative defenses of immunity and discretion. Ds got summary
judgment and this was affirmed by the Court of appeals. P appealed.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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