• Mother Sues Cops For Failing to Protect Kids

    Email Print
    Share

    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

    Email Print
    Share