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Mother Sues Cops For Failing to Protect
Kids
Last week the U.S. Supreme Court heard arguments on
supreme.lp.findlaw.com/supreme_court/briefs/04-278/04-278.mer.pet.pdf
Town of Castle Rock, Colorado v. Gonzales
[.pdf]. At issue is whether Jessica
Gonzales can sue her local police department in
federal court for violating her Constitutional
rights when they did not enforce a restraining
order. The decision, expected in June, could
revolutionize the way police departments across
America handle such orders. Hopefully, it will
spark discussion of how they are issued as well
The bare, brutal facts of the Gonzales case are
not in dispute.
As part of a divorce proceeding, Jessica
Gonzales obtained a restraining order against her
husband Simon, which limited his access to the
family home and to their children. On June 22nd,
1999, Simon abducted their three daughters from the
home. Early the next morning, Simon committed
“suicide by cop”; he was killed in a
gunfight after he fired shots through a police
station window. Police found the murdered bodies of
Leslie 7, Katheryn 9, and Rebecca 10 in
Simon’s pickup truck.
The interpretation of surrounding facts is in
dispute.
After the abduction, Gonzales repeatedly phoned
the Castle Rock, Colorado police for assistance.
Two officers -- one-half of the small town's then
on-duty force -- visited her home. They concluded
that Simon showed no violent tendencies and that he
was in compliance with the restraining order. Even
after Gonzales ascertained the location of her
husband and daughters, the police insisted they
could do nothing. By Colorado state law, however,
the police are required to “use every
reasonable means to enforce a protection
order.”
At issue before the Supreme Court is whether the
police department violated Gonzales’ (and her
daughters’) www.nps.gov/malu/documents/amend14.htm
14th amendment right to due process when it
declined to enforce the protection order. Section 1
of the Amendment asserts, “No State
shall…deprive any person of life, liberty or
property, without due process of law…”
Thus, Gonzales’ suit for $30 million in
compensatory damages (as well as punitive damages
and attorneys fees) holds her local police
department liable under federal civil rights
law.
Supported by women’s groups such as
www.abanet.org/nawl/news/release021105.html
National Association of Women Lawyers, the Gonzales
suit is path-breaking in at least two ways: first,
it would establish restraining orders as de facto
Constitutional entitlements, the enforcement of
which are guaranteed by procedural due process;
and, second, it would hold state police federally
liable for actions they did not take rather than
for their bad acts.
Opponents reject this argument as having been
settled by the Supreme Court’s 1989 decision
on caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=489&invol=189
DeShaney v. Winnebago Cty. Dept. of Soc. Servs. The
decision held local officials not liable under the
Constitution for failure to protect individuals
from violence by other private individuals.
The Gonzales case involves complex political
issues. For example, should government agents be
immune from lawsuits to which private individuals
are vulnerable? Why does accepting a tax-funded
salary provide exemption from bad acts?
A March 20th report on www.cbsnews.com/stories/2005/03/17/60minutes/main681416.shtml
60 Minutes has stirred commentary on those and
other questions. (It has also brought accusations
that the broadcast, which became an expose on the
police, was www.cbsnews.com/stories/2005/03/17/60minutes/main681416.shtml
biased and selective with facts.)
But one question remains curiously
under-discussed. Namely, what does the police
reaction say about current policies on issuing
restraining orders?
I think it says restraining orders are granted
too easily. A restraining order is a legal
constraint on another person’s body, which
limits his or her freedom; it should be imposed
only in the presence of a real threat from that
person.
But, today, restraining orders are almost a
routine part of contentious divorces, which lawyers
often use to advantage in negotiating settlements.
As a purely practical matter, it may be impossible
for police to enforce the resulting flood of
restraining orders. Thus, those who oppose
Gonzales’ arguments e.g. the Bush
administration and various police organizations --
do so partly on utilitarian grounds.
Moreover, the ease with which
“standard” restraining orders are
obtained and the role they play in “divorce
maneuvering” makes the police view them with
less urgency.
In Castle Rock’s petition to the Supreme
Court, the Gonzales order is described as “a
perfunctory, standard-form partial restraining
order” through which Simon Gonzales was
“to avoid contact with Ms. Gonzales and her
children other than during parenting time to which
he was entitled every other weekend, for two weeks
during the summer, and during a pre-arranged
mid-week dinner visit.” (p.6) Rather than
indicate potential violence, the order must have
read like routine paperwork. Apparently, this is
how the police read it…with terrible
consequences for everyone, including women (and
men) who require protection from real threats of
violence.
In a Washington Post www.registerguard.com/news/2005/03/27/ed.col.abuse.0327.html
column, law professor Joan Meier opens with a sharp
but just comment, “It is common for the public
and the courts to criticize women who are victims
of domestic abuse for staying in an abusive
relationship and tolerating it.” She points to
Gonzales as an example of what happens when women
stand up for themselves.
Meier makes an excellent point but she also
misses one. As long as restraining orders are
“standard” and “perfunctory”
they lose all value as indications of possible
violence. Perhaps the police would take them
seriously if they were issued only after a genuine
threat of violence had been established. Otherwise,
it becomes impossible to distinguish a necessary
restraining order from one obtained for
advantage.
©2007, Wendy
McElroy
* * *
Wendy
McElroy is the editor of ifeminists.com
and a research fellow for The Independent Institute
in Oakland, Calif. She is the author and editor of
many books and articles, including her latest book,
Liberty for Women: Freedom and Feminism in the
21st Century. She lives with her husband in
Canada. E-Mail.
Also, see her daily blog at www.zetetics.com/mac
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