High Court to Rule on Power of Protective Orders

WASHINGTON (WOMENSENEWS)–Domestic-violence activists walked out of the Supreme Court Monday doubtful that the High Court would rule in a way that they believe could save the lives of hundreds of women and children across the country.

At issue yesterday in arguments before the court was whether local police departments can be held liable if their officers fail to properly enforce domestic violence restraining orders. That is, are those who go to their local courts and gain a judge’s order barring another person from harming them guaranteed the right to police protection if that same person ignores the judge and violates the order?

The question was raised by Jessica Gonzales, a Colorado woman who believes that the town of Castle Rock is partly responsible for the deaths of her three young daughters. Gonzales is seeking $30 million in compensatory and punitive damages from Castle Rock because its police officers did not take certain actions when she notified them that her estranged husband–Simon Gonzales–had abducted their children, violating the terms of a local court’s restraining order that she had obtained a month earlier. He later murdered them.

Gonzales first notified the police that her children had been kidnapped from their front yard on the evening of June 22, 1999, telling them at the time she suspected her husband and notifying them of his restraining order. But Gonzales said police brushed aside her pleas for intervention, instead telling her to wait until 10 p.m. for their return. She made several more calls for help throughout the night, even notifying the police of her husband’s location with the children at a nearby amusement park, which she learned after calling his cell phone. But to no avail. After midnight, she drove to the station and filed an incident report, but the police took no further action.

About three hours later, Simon Gonzales drove up to the station and opened fire. The officers shot back and, after killing Gonzales, approached his truck and found the bodies of the three girls inside. He had apparently killed them after leaving the amusement park.

Colorado law classifies violations of these types of restraining orders, often called protective orders, as a crime. The state legislature has also enacted a law requiring police officers to arrest violators of protective orders.

Joan S. Meier, a professor of clinical law at The George Washington University Law School in Washington, D.C., and director of the university’s Domestic Violence Legal Empowerment and Appeals Project, said her prognosis for a favorable outcome was “not good” after listening to questions from the nine justices. “So many of them seemed to feel that there was no entitlement” to police protection, she said. “It frankly surprised me.”

Even Gonzales’ attorney, Brian J. Reichel of Colorado, doubted he would prevail after he finished arguing his case. “Given the odds, I expect a reversal,” he said, referring to the 2004 appellate court decision that determined that the 14th Amendment of the Constitution guaranteed Gonzales a protected property right to police enforcement of the restraining order. “But I hope for the best.”

Gonzales, meanwhile, dismissed critical questions from the justices during the hour-long oral arguments, saying afterward that the justices “are looking at it from every angle.”

Justices Question Right to Sue

Reichel’s skepticism arose after the questions raised by several justices that indicated they were opposed to the idea that Gonzales has the right to sue the town of Castle Rock. They seemed to suggest that a promise outlined in state law–in this case the government’s pledge to enforce protective orders–cannot be interpreted as a kind of property that is protected by the 14th amendment “due process” clause of the Constitution.

Castle Rock’s attorney, John Eastman, argued that state law does not intend the mandate to enforce protective orders to read as a property right, a view apparently shared several justices who made the point during their questions.

The state’s promise to enforce protective orders “doesn’t necessarily mean it’s a property interest,” said Justice Antonin Scalia, one of the most conservative members of the court. He later wondered what the effect of such an interpretation would mean for other “zany” property interest claims. “Is everything in the world either life, liberty or property?” Scalia asked. “Does that describe everything in the world?”

Reichel responded later that the state law does in fact create a property right for holders of restraining orders. The order, he argued, entitles victims to a government service in the form an “objective, reasoned and good faith” consideration of a holder’s complaint that the order has been violated. Gonzales did not receive that evaluation, he said, ultimately rendering her restraining order a meaningless piece of paper that actually heightened her danger because she relied on an empty promise instead of taking action herself.

Affording Due Process Would Be ‘Major Step’

Justice Sandra Day O’Connor, a moderate who is viewed as one of the swing votes on the court, appeared to side with Castle Rock on another of the town’s arguments: that affording due process rights to those whose protective orders are violated would set a precedent that would impose new burdens on state and local government.

“This would be a major step, wouldn’t it?” she pressed Reichel.

Even Ruth Bader Ginsburg, nationally known as a women’s rights advocate before being appointed by former President Clinton, sympathized at one point with Castle Rock. The police, she seemed to suggest, may have made a reasonable determination that the situation “can’t be that urgent” because the terms of the protective order allowed the children’s father to spend certain times alone with them.

Ruling Expected This Summer

The court is not expected to issue a ruling until this summer. When it does, the decision will have significant implications for victims of domestic violence.

Supporters of Castle Rock maintain that if the High Court rules that police departments can be held liable for failing to enforce protective orders, the ruling would impose a crushing burden on state and municipal governments and police departments. Castle Rock maintains that such a ruling would pave the way for thousands, if not millions, of lawsuits, according to an analysis of the case published by the American Bar Association. At the same time, it would require police departments to give every complaint of a violation of a protective order the highest priority, regardless of other emergencies taking place at the time.

Those who believe the Supreme Court should uphold the decision by the lower court argue that the ruling would save lives by requiring police to make domestic violence a higher priority and enhancing the deterrent power of the order.

On the other hand, if the High Court overturns the lower court’s ruling, it would diminish a protective order’s power to deter potentially violent individuals, placing women and children in greater harm than they would be otherwise, say women’s rights advocates.

Lenora Lapidus, director of the Women’s Rights Project at the American Civil Liberties Union in New York, argued the point during a press briefing before the trial. “Without systems of accountability in place, women and children are subject to the whims of local police departments and may suffer grievous harm from their abusers,” she said.

Overturning the lower court would deprive victims of a tool that serves several valuable purposes: In addition to deterring crime, restraining orders alert the police to certain individuals deemed by the court to be potentially dangerous; apply a lower threshold for the arrest of individuals who violate protective orders; provide a record that can be used in future court proceedings; and help perpetrators understand that their actions are wrong, according to the National Center for Victims of Crime.

“If the law’s claimed purpose to protect is a fraud, we should know that,” Gonzales said in a statement. “We should know that we are on our own when someone is out to murder our children.”

Allison Stevens is Washington Bureau Chief at Women’s eNews.