Mother Sues Cops For Failing to Protect Kids

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Last
week, the U.S. Supreme Court heard arguments on 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 22, 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 the surrounding facts is in dispute.

After
the abduction, Gonzales repeatedly phoned the Castle Rock, Colo.
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’) 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 the 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 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 20 report on 60
Minutes
has stirred commentary on those and other questions.
(It has also brought accusations that the broadcast, which became
an expos on the police, was 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
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.

April
1, 2005

Wendy
McElroy [send her mail]
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 the new book, Liberty
for Women: Freedom and Feminism in the 21st Century

(Ivan R. Dee/Independent Institute, 2002).

Wendy
McElroy Archives

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