William Fisher

NEW YORK, Mar 18 2005 (IPS) — A victim of domestic violence goes to court and gets a protection order against her husband in a state that has a law mandating the police to arrest the abuser if he violates the order. He does, and the victim repeatedly reports his conduct to police, but police fail to respond. Can the police be held responsible?

This is the issue the U.S. Supreme Court will weigh Monday in a tragic case that took place in the town of Castle Rock, Colorado – and which could have huge implications for municipalities and their police departments throughout the country.

In May 1999, Jessica Gonzales obtained a restraining order limiting her husband’s contact with her and their three daughters, aged seven, nine and 10.

The following month, Gonzales’ husband Simon allegedly abducted the three girls. Throughout that evening and into the early hours of the next morning, Jessica Gonzales repeatedly called the police department and twice met with police in person, pleading with them to enforce the protection order. She wanted her husband arrested.

Police told her to wait, and she did. At 1 a.m. the next morning, she went to the police station and filed an incident report. But the officer who received the report failed to act and allegedly went to dinner.

Two hours later, Simon Gonzales arrived at the Castle Rock police station and opened fire with a semi-automatic handgun. Police shot him dead. In the cab of his truck were the bodies of the three girls, who had been murdered by their father.

Jessica Gonzales sued the police department and the town, charging violations of substantive due process and procedural due process. Substantive due process focuses on challenges to conduct. Procedural due process is about notice and the opportunity to be heard.

“I don’t lose three children and not do something about it,” says Gonzales in an interview that will be broadcast by 60 Minutes on Sunday. “(The lawsuit) is the only way…my best shot to make a change, to make the world a little safer.” Her lawyers claim the case is not about a hearing; it is about police conduct: she wanted the police to enforce the protection order. Colorado is one of 20 states that have passed laws mandating police to arrest those who violate protection order if they find probable cause.

“If there’s a restraining order in place, a court order in place, telling them what to do, just do it,” says Brian Reichel, Gonzales’ lawyer.

The high court must decide whether a civil rights remedy is available to domestic violence victims whose pleas to enforce protection orders go unheeded by local police departments, writes Marcia Coyle in the National Law Journal.

The case is an appeal by the town of Castle Rock of a decision by the 10th U.S. Circuit Court of Appeals, which held last year that Castle Rock could be held liable for the inaction of its police.

The divided court ruled that the combination of a protection order and a state statute mandating arrest of the person restrained when police have probable cause to believe the order has been violated creates a property interest in enforcement of the order, Coyle reports.

The core of the case lies in a 1989 decision the courts have used as a precedent. In that case, known as DeShaney v. Winnebago County Department of Social Services, the Supreme Court rejected the substantive due process claim.

As reported in the National Law Journal, in 1984, four-year-old Joshua DeShaney became comatose and severely brain-damaged because of physical abuse by his father, who beat him over a long period of time.

The county social services department received numerous complaints of abuse and visited the home on occasion but did not remove Joshua from his father’s custody. His mother sued the department, charging a violation of substantive due process.

But the high court held that there was no substantive due process violation because the due process clause does not require the government to protect an individual from third-party violence, Coyle writes.

In the Gonzales case, the implications for both municipalities and victims of domestic violence are so sweeping, “friend of the court” (amicus) briefs have been filed on both sides.

“People feel very strongly that the system is not working for women,” Lorelie S. Masters, amicus counsel to the National Association of Women Lawyers and others, told the National Law Journal.

“We need to do something here to turn things around and have a sanction on the kind of failure in this case to enforce these mandatory arrest orders.”

But Brad Bailey of the Office of the City Attorney in Littleton, Colorado, amicus counsel to the International Municipal Lawyers Association and others, said from a law enforcement perspective, “Where do we draw the line? If, as the 10th Circuit indicated, there is an immediate property right, it becomes difficult to know when the police violate it. We’re looking at potential astronomical liability.”

If the ruling of the 10th Circuit is affirmed, the DeShaney decision would be effectively overruled because every substantive claim barred by the DeShaney case could be recast as a procedural claim.

The American Civil Liberties Union (ACLU) and other civil rights groups have also filed amicus briefs. The ACLU contends that the Gonzales case stands apart from the DeShaney decision because, while DeShaney refused to recognise a governmental obligation to protect individuals from third-party violence, “it did not consider a situation in which a court’s specific findings trigger specific statutory requirements that such protection be provided.”