The Supreme Court has deigned to hear the case of Castle Rock, CO, vs. Gonzales in which one Jessica Gonzales has sued the town of Castle Rock for failing to enforce a protective order against her estranged husband, who abducted their three children, murdered them, and then committed suicide by cop. Ms. Gonzales sued because, she says, her husband violated the restraining order by abducting the children, and the City of Castle Rock police department made no effort to recover her children after she repeatedly asked them to enforce the restraining order. She sued under a due-process argument, claiming that the failure of the police to act violated her rights. Essentially, she argued that by obtaining the restraining order she had a “special relationship” that meant that either: A) the police were obligated to enforce the order; or B) the police were obligated to tell her that they would not.
It’s an interesting argument, and it resulted in an en-banc 10th Circuit 6-5 decision in her favor, but one I think is destined to fail in the high court.
The Washington Post has a story on this case in which they explain:
The case is a sequel to one of the most emotion-laden cases in recent Supreme Court history, 1989’s DeShaney v. Winnebago County, in which the justices ruled, 6 to 3, that a brain-damaged Wisconsin boy, Joshua DeShaney, and his mother could not sue local authorities who knew that the boy was being beaten by his father but did not stop the beatings.
In an opinion by Chief Justice William H. Rehnquist, the court said the constitutional guarantee of due process of law did not “require the State to protect the life, liberty and property of its citizens against invasion by private actors.”
The ruling prompted the late Justice Harry A. Blackmun to exclaim in dissent: “Poor Joshua!”
Yes, poor Joshua. The article also says:
In a 6 to 5 ruling, the appeals court acknowledged that the Supreme Court’s ruling in DeShaney bars any claim based on a right to be protected by local authorities. But the 10th Circuit said the restraining order against her husband gave Jessica Gonzales a strong enough expectation of government protection that she had a due-process right at least to be told in advance if the town was not going to enforce it.
Interesting idea, but I don’t see it flying. Why? Because of this:
The town, Castle Rock, seeks to overturn a federal appeals court ruling that found it liable because it had not given the children’s mother adequate notice of its non-enforcement or a chance to plead her case.
Castle Rock, supported by the International Municipal Lawyers Association and the National League of Cities, contends the Supreme Court must overturn that ruling to prevent a “potentially devastating” flood of lawsuits that “could bankrupt municipal governments . . . given the inevitability of less-than-perfect enforcement.”
And, given judicial precedent, I am forced to agree.
A long time ago I wrote the two-piece essay Is the Government Responsible for Your Protection? – which included the stories of Carolyn Warren, Joan Taliaferro, and Miriam Douglas in Part I, and Linda Riss in Part II. I’m sure these ladies could have used Justice Blackmun’s sympathy as well (though given Linda Riss’s later behavior, my own sympathy for her is more than a little tempered.)
The fact is that the government cannot be made responsible for your protection. It would be, in the end, just too expensive – exactly the reasoning behind the City of Castle Rock’s argument and every prior decision on this topic. But they certainly expect we poor citizens to accept the idea that a restraining order is something more than a mere piece of paper that accomplishes exactly nothing except making it illegal for the party on the receiving end to possess a firearm. Like that actually stopped Simon Gonzales. Or Justin Meyer. Or Antonio Wright. And besides, who needs a gun? Thomas Toolan didn’t. He used a knife. So did Tony Sukto. Jack Fuller Jr.’s weapon is not yet known, but it wasn’t a gun.
Every one of them had a restraining order against them. Not one of them was stopped by said order. There are innumerable other stories, each just as bad if not worse.
The 10th Circuit thinks (6-5) that citizens should be told when a polity isn’t going to enforce a restraining order? Getting the government to admit this fact, baldly, in plain English, is in my humble opinion a pipe-dream. The government isn’t going to admit anything.
But it’s about time the general public figured it out for itself, don’t you think? Perhaps the Supreme Court will be able to get their attention.
(Update, 11/7: A reader points out that there was no restraining order against Thomas Toolan. His victim had looked into getting one two days before her murder, but had not pursued it further. However, would it have made any difference?)
UPDATE 11/8: I found this cartoon (if anyone knows who the artist is, tell me) that illustrates the point quite well:
