The complaint asserted that the defendant police officers had deprived Balistreri of due process and equal protection of the law, and violated her rights to be free of excessive use of force and unreasonable searches and seizures by police. The district court dismissed the complaint with prejudice. Balistreri claims that defendants breached a duty to protect her imposed by the due process and equal protection clauses of the Fourteenth Amendment, and further claims a violation by defendants of her right to be free from excessive use of force and unlawful searches and seizures by police.
A. Due Process
Although mere negligence or lack of due care by state officials does not trigger the protections of the due process clause of the Fourteenth Amendment, and therefore does not state a claim under Sec. 1983, Daniels v. Williams, 474 U.S. 327, 330-32, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986), conduct which is less than intentional can be cognizable under Sec. 1983. E.g., Ketchum v. Alameda Co., 811 F.2d 1243, 1244, 1246 n. 3 (9th Cir.1987) (gross negligence sufficient). Balistreri has alleged facts which could establish either intentional harassment by defendants, or deliberate or reckless indifference to her safety. These allegations are sufficient to state a Sec. 1983 claim. See, e.g., Taylor v. Ledbetter, 818 F.2d 791, 793 (11th Cir.1987) (en banc); Davidson v. O’Lone, 752 F.2d 817, 828 (3rd Cir.1984) (en banc), aff’d on other grounds sub nom. Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986); White v. Rochford, 592 F.2d 381, 385 (7th Cir.1979); see also Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (prison officials’ deliberate disregard of prisoner’s serious illness or injury violates Eighth Amendment and is cognizable under Sec. 1983).
The heart of Balistreri’s claim is that the Pacifica police failed to take steps to respond to the continued threats, harassment and violence towards Balistreri by her estranged husband. These allegations, if true, would implicate Balistreri’s right to be free from physical harm and restraint comprised by the due process right to liberty. See Ingraham v. Wright, 430 U.S. 651, 674-75, 97 S.Ct. 1401, 1414, 51 L.Ed.2d 711 (1977); Rutherford v. City of Berkeley, 780 F.2d 1444, 1447 (9th Cir.1986).3 While there is, in general, no constitutional duty of state officials to protect members of the public at large from crime, see Martinez v. California, 444 U.S. 277, 284-85, 100 S.Ct. 553, 558-59, 62 L.Ed.2d 481 (1980); Ketchum, 811 F.2d at 1247; Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982), such a duty may arise by virtue of a “special relationship” between state officials and a particular member of the public. Ketchum, 811 F.2d at 1247; Escamilla v. Santa Ana, 796 F.2d 266, 269 (9th Cir.1986).
In Escamilla v. Santa Ana, this court stated that “state officers’ inaction,” including failing to perform a legally required act or showing deliberate indifference to a prisoner’s safety, may be the basis for section 1983 claims. 796 F.2d at 268 (citing Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976), and Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978)). Although Estelle and Johnson are both prisoner cases, Escamilla, involved the inaction of police officers in failing to protect a bystander. Escamilla dismissed the Sec. 1983 claim, not because prisoner cases are sui generis and inherently distinguishable from police-and-bystander cases, but rather because in Escamilla there was no “custodial or other relationship obligating the police to protect the victim’s safety.” 796 F.2d at 269. However, Escamilla notes that such a relationship could arise between police and persons not in custody.
To determine whether a “special relationship” exists, a court may look to a number of factors, which include (1) whether the state created or assumed a custodial relationship toward the plaintiff; (2) whether the state was aware of a specific risk of harm to the plaintiff; (3) whether the state affirmatively placed the plaintiff in a position of danger; or (4) whether the state affirmatively committed itself to the protection of the plaintiff. See Ketchum, 811 F.2d at 1247; Escamilla, 796 F.2d at 269-70; Jensen v. Conrad, 747 F.2d 185, 194 (4th Cir.1984).4
Relying on this court’s decision in Ketchum, the district court found “that no special relationship distinguishing plaintiff from the general public exists in the present case.” Balistreri, 656 F.Supp. at 425. The district court correctly noted that Balistreri had alleged neither that the state had created or assumed a custodial relationship over her, nor that the state actors had somehow affirmatively placed her in danger. There were no allegations that the defendants had done anything to “ratify, condone or in any way instigate” the actions of Balistreri’s ex-husband. Id. (citing Estate of Gilmore v. Buckley, 787 F.2d 714, 722 (1st Cir.1986)). The district court is also probably correct in its suggestion that the state’s awareness of the victim’s plight, by itself, will not create a “special relationship.” See 656 F.Supp. at 426 & n. 1 (citing Jensen, 747 F.2d at 195 n. 11) (state’s awareness of plaintiff’s plight “goes more to the breach of the ‘special relationship’ than a definition of the relationship”).
However, the district court erred in failing to consider whether the state had affirmatively undertaken any duty to protect Balistreri. Although this “special relationship” factor is not listed in Ketchum, it is set forth in Escamilla, 796 F.2d at 269-70 (citing Jensen v. Conrad, 747 F.2d at 194), and nothing in Ketchum suggests that the factors enumerated there are meant to be exhaustive. The district court was also mistaken in concluding that the state’s awareness of the victim’s plight would not support a finding of a special relationship outside of a custodial context. See 656 F.Supp. at 426. The Fourth Circuit cases relied on by the district court for this proposition, dating from 1980 and before, predate the expansion of the “special relationship” concept. The more recent Fourth Circuit cases, Fox v. Custis, 712 F.2d 84, 88 (4th Cir.1983) and Jensen, 747 F.2d at 194, both refer to a “special relationship” in terms of a “custodial or other relationship.” These cases, as do Escamilla and Ketchum from our circuit, make clear that “special relationships” can be found outside the custodial context. The district court can and should have considered whether the restraining order constituted an affirmative state commitment to protect Balistreri from her husband’s harassment, and whether such commitment together with the police awareness of Balistreri’s complaints created a special relationship.
In similar circumstances, courts have found that a “special relationship” may exist giving rise to a constitutional duty of police protection. In Dudosh v. City of Allentown, 629 F.Supp. 849, 854-55 (E.D.Pa.1985), the court found that plaintiff’s complaint sufficiently alleged a special relationship to survive Rule 12(b)(6) dismissal where a wife had obtained a protection-from-abuse order and subsequently contacted police numerous times regarding general harassment, abuse and specific threats against her by her husband, who finally shot and killed her. The order, combined with her subsequent contacts, established a “special relationship” imposing a duty of protection upon the police.5 See also Thurman v. City of Torrington, 595 F.Supp. 1521, 1527 (D.Conn.1984) (finding equal protection duty of state officials to take reasonable preventive measures against domestic abuse of woman, where state had notice of possibility of attacks against her); Bartalone v. County of Berrien, 643 F.Supp. 574, 577 (W.D.Mich.1986) (same); but see Turner v. City of North Charleston, 675 F.Supp. 314, 318-19 (D.S.C.1987) (state Protection from Domestic Violence Act did not indicate state’s affirmative duty to intervene on behalf of domestic violence victims).
We conclude that the restraining order together with the defendants’ repeated notice of Balistreri’s plight, as alleged in the complaint, are sufficient to state a claim that the defendants owed Balistreri a duty to take reasonable measures to protect Balistreri from her estranged husband. The relationship between the defendants’ failure to arrest or investigate, and Balistreri’s emotional distress, presents a causation question separate from the special relationship and duty of protection issues.
B. Equal Protection
Several district courts have held that police failure to respond to complaints lodged by women in domestic violence cases may violate equal protection. In Thurman v. City of Torrington, 595 F.Supp. 1521 (D.Conn.1984), a wife and her son alleged that the defendant police failed to provide the same protection to abused spouses and children as was afforded the victims of similar abuse outside a domestic relationship. The court held that:
City officials and police officers are under an affirmative duty to preserve law and order, and to protect the personal safety of persons in the community…. This duty applies equally to women whose personal safety is threatened by individuals with whom they have or have had a domestic relationship as well as to all other persons whose personal safety is threatened, including women not involved in domestic relationships. If officials have notice of the possibility of attacks on women in domestic relationships or other persons, they are under an affirmative duty to take reasonable measures to protect the personal safety of such persons in the community. Failure to perform this duty would constitute a denial of equal protection of the laws.
Although the plaintiffs point to no law which on its face discriminates against victims abused by someone with whom they have a domestic relationship, the plaintiffs have alleged that there is an administrative classification used to implement the law in a discriminatory fashion. It is well settled that the equal protection clause is applicable not only to discriminatory legislative action, but also to discriminatory governmental action in administration and enforcement of the law.
595 F.Supp. at 1527 (citations omitted). Because the defendants put forward no important governmental interest for discriminating against women in the provision of police services, see Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976) (discriminatory gender classification can only be justified by important governmental interest), the court held that plaintiffs stated a claim for denial of equal protection. Thurman, 595 F.Supp. at 1527-29. Accord Bartalone v. County of Berrien, 643 F.Supp. 574, 577 (W.D.Mich.1986); Dudosh v. City of Allentown, 665 F.Supp. 381, 392-94, reconsideration denied sub nom. Dudosh v. Warg, 668 F.Supp. 944, 951 (E.D.Pa.1987).
Here, Balistreri’s claim is not well-pleaded. Although the complaint states the conclusion that Balistreri was deprived of her right to equal protection of the laws, Complaint at 7-8, there is no specific claim that the defendants’ conduct reflected discrimination based on Balistreri’s status as a female victim of domestic violence. Instead, the complaint alleges that the defendants’ conduct reflected a “failure to protect all members of the public.” Complaint at 9.
Notwithstanding this poor draftsmanship, sufficient facts are alleged to suggest animus against Balistreri because she is a woman. For example, the complaint alleges that a responding officer to Balistreri’s 1982 assault complaint allegedly stated that he “did not blame plaintiff’s husband for hitting her, because of the way she was ‘carrying on.’ ” Complaint at 3. Such remarks strongly suggest an intention to treat domestic abuse cases less seriously than other assaults, as well as an animus against abused women. Cf. Usher v. City of Los Angeles, 828 F.2d 556, 562 (9th Cir.1987) (derogatory references by police calling plaintiff “nigger” and “coon” demonstrate racial animus to support claim of malicious prosecution violating equal protection).
Because the complaint here is so suggestive of an equal protection claim, we find that the district court abused its discretion in dismissing the claim with prejudice. A dismissal with prejudice in this circumstance does not comport with the policy of Fed.R.Civ.P. 15(a), favoring liberal amendment of pleadings. See, e.g., DCD Programs, Ltd v. Leighton, 833 F.2d 183, 185-87 (9th Cir.1987).
We AFFIRM the district court’s dismissal of plaintiff’s search, seizure and use of force claims, but REVERSE the dismissal with prejudice of plaintiff’s due process and equal protection claims.