When Police Fail To Enforce A Restraining Order. . .
Are they liable? No, says Supreme Court
State laws typically require police to enforce restraining orders in domestic abuse cases. Some statutes speak in terms of mandatory enforcement; others speak in more permissive terms when it comes to defining the duties of law enforcement. Whether violating a statute by failing to enforce it causes the neglecting officer to be liable in damages is ordinarily a matter of state law as well.
In the case of Town of Castle Rock, Colorado vs. Jessica Gonzales, 125 S.Ct. 2796 (2005), the plaintiff brought the non-enforcement issue in federal court claiming that her federally protected rights under the Fourteenth Amendment's Due Process Clause had been violated. More specifically, the United States Supreme Court had to decide whether the failure of local police to enforce a mandatory statutory provision enacted for the protection of an abused spouse caused them to violate the procedural rights guaranteed under the United States Constitution. Perhaps the reason the plaintiff had sought a remedy under § 1983 of the federal Civil Rights Act, rather than pursuing a damage action in the local courts under state law, was because the facts were rather egregious, and the failure to enforce the protection order caused the death of three children of tender years. In its decision rendered on June 27, 2005, the high court held that the plaintiff had neither an “entitlement” to enforcement nor a “property interest” in enforcement under the federal Due Process Clause.
The controversy, thus, arose from the existence of a “mandatory enforcement” clause in a state statute regulating restraining orders and the extreme consequences from failing to stop an estranged husband from abducting and murdering of his three children.
Jessica Gonzales had instituted divorce proceedings in Colorado and, as part of the divorce action, the state court had issued a restraining order which commanded her estranged husband not to “molest or disturb the peace of [Jessica Gonzales] or of any child,” and “to remain at no less than a distance of 100 yards from the family home at all times.” The order contained a provision awarding the husband some parenting time with the couple's daughters upon pre-arrangement. The bottom portion of the pre-printed form also made prominent reference to its reverse side with its “IMPORTANT NOTICES FOR RESTRAINED PARTIES AND LAW ENFORCEMENT OFFICIALS.”
The actual text on the back of the form included the following “WARNING” [Capital letters and bold face as they appear in the Court's opinion and, presumably, on the TRO form. Editor.]: “A KNOWING VIOLATION OF A RESTRAINING ORDER IS A CRIME . . . . A VIOLATION WILL ALSO CONSTITUTE CONTEMPT OF COURT. YOU MAY BE ARRESTED WITHOUT NOTICE IF A LAW ENFORCEMENT OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT YOU KNOWINGLY VIOLATED THIS ORDER.
The preprinted text on the reverse side of the restraining order form also included the following
NOTICE TO LAW ENFORCEMENT OFFICIALS,
YOU SHALL USE EVERY REASONABLE MEANS TO ENFORCE THIS RESTRAINING ORDER. YOU SHALL ARREST, OR, IF AN ARREST WOULD BE IMPRACTICAL UNDER THE CIRCUMSTANCES, SEEK A WARRANT FOR THE ARREST OF THE RESTRAINED PERSON WHEN YOU HAVE INFORMATION AMOUNTING TO PROBABLE CAUSE THAT THE RESTRAINED PERSON HAS VIOLATED OR ATTEMPTED TO VIOLATE ANY PROVISION OF THIS ORDER AND THE RESTRAINED PERSON HAS BEEN PROPERLY SERVED WITH A COPY OF THIS ORDER OR HAS RECEIVED ACTUAL NOTICE OF THE EXISTENCE OF THIS ORDER.
The trial court had originally issued a temporary restraining order (TRO) but, at some time prior to the relevant facts, had made the order permanent. There is also no question but that the restrained person - Jessica Gonzales' estranged husband - had been properly served with the order.
The tragic events began when the husband took his three children from the very residence which he had been enjoined from approaching and at a time when no prior arrangement had been made for “parenting” time. The three girls had been playing outside the family home when, unknown to Mrs. Gonzales at the time, they were taken by their father in the late afternoon. When Mrs. Gonzales noticed that the children were missing, she immediately suspected that the husband had taken them and soon called the Castle Rock Police Department, which dispatched two officers to talk to her.
When the officers arrived, Mrs. Gonzales showed them the temporary restraining order and “requested that it be enforced and the three children be returned to her immediately.” The officers responded there was nothing they could do about the TRO and suggested she call the station again if the children had not been delivered to their home by 10:00 p.m.
Around 8:30 p.m., Mrs. Gonzales talked to her husband on his cellular telephone and he said that the three children were with him at an amusement park in nearby Denver. She immediately called the police again and asked to “have someone check for” her husband or his vehicle at the amusement park and “put out an all points bulletin for him.” The officer at the police station “refused to do so” and told her, again, to wait until 10:00 p.m. to see if the husband returned the girls.
TRAGIC CONSEQUENCES DISCUSSED
Because the children had not arrived home, Mrs. Gonzales called the police department for the third time at 10:10 p.m. to inform them the children were missing. This time, the police response was that she should wait until midnight to see whether they had come back.
She informed dispatch at midnight that the children were still not home, and went to her husband's apartment. Finding no one there, she called the police again at 12:10 a.m. and was told to wait for an officer to arrive. Because no police officer showed up at the apartment, she went to the station at 12:50 a.m. and submitted an incident report describing the abduction. According to the § 1983 complaint she later filed in federal court, “The officer who took the report made no reasonable effort to enforce the TRO or locate the three children. Instead, he went to dinner.” The grisly aftermath of the incident was a triple murder.
THE THREE CHILDREN BRUTALLY MURDERED
The husband finally did show up at the police station in his pickup truck around 3:20 a.m. Earlier that evening, he had purchased a semi-automatic gun and, upon arriving at the station, opened fire on the officers. They returned his shots and killed him. At that moment, it was already too late for the three children! They were found, murdered, in the cab of the husband's truck.
The federal complaint filed against the police department, its officers, and the town alleged that Castle Rock had an “official policy or custom of failing to respond properly to complaints of restraining order violations” and that it also “tolerated the non-enforcement of restraining orders by its police officers.” The complaint further specified that the town's actions were either done willfully, recklessly, or with such gross negligence as to indicate a wanton disregard and deliberate indifference to Jessica Gonzales' civil rights, for which delinquency the constitution provided a remedy. The United States District court initially dismissed the complaint for failure to state a cause of action, but a three-judge panel of the federal appeals court partially reversed the trial court, finding there was at least a procedural due process violation.
On further review by the full Tenth Circuit Court of Appeals, that position was vindicated when the tribunal, in a divided opinion, found that Mrs. Gonzales had a “protected property interest in the enforcement of the terms of her restraining order” and that she had been deprived of her procedural due process rights when the police never “seriously entertained her request to enforce and protect her interests in the restraining order.”
IT WAS NOW UP TO THE SUPREME COURT!
The United States Supreme Court agreed to review the case and, in an opinion authored by Justice Scalia, reversed the Circuit Court's holding, finding no violation of a federal constitutional right in this instance. The Court began its analysis of the law by recognizing that it had left unanswered a similar question raised in an earlier case where the failure of local child protection officials to enforce a protection order had resulted in a young boy being beaten severely by his father. The “undeniably tragic” consequence of the failure to act left the boy severely brain damaged. The Court remarked, however:
“The procedural component of the Due Process Clause does not protect everything that might be described as a “benefit”: To have a property interest in a benefit, a person clearly must have more than an abstract need or desire and more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. Such entitlements are . . . not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.”
Thus, it is necessary first to look to state law to see exactly what rights are conferred on injured parties. When that determination has been made, however, it still remains a question of federal constitutional law to decide whether the rights conferred by state law amount to a “property interest” for purposes of the Fourteenth Amendment.
The legislative history of the underlying state statute seemed to indicate that Colorado's legislature clearly evidenced an intent “to alter the fact that the police were not enforcing domestic abuse restraining orders” and that it intended “that the recipient of a domestic abuse restraining order have an entitlement to its enforcement.” The mandatory language, contained in both the statute and printed prominently on the restraining order itself, that police “shall” use every reasonable means to enforce restraining orders, and “shall” arrest the perpetrator if possible appeared to be self evident in this case. But not to the United States Supreme Court! Despite the state law's actual text and its historical background, the Supreme Court's majority was not persuaded that plaintiff had been given a federal entitlement to enforcement:
IT TURNS OUT THAT “MANDATORY” ISN'T ALWAYS “MANDATORY”
The Court said, “We do not believe that these provisions of Colorado law truly made enforcement of restraining orders mandatory. A well established tradition of police discretion has long coexisted with apparently mandatory arrest statutes. . . .
“The deep-rooted nature of law enforcement discretion, even in the presence of seemingly mandatory legislative commands, is illustrated by Chicago v. Morales, 527 U.S. 41 (1999), which involved an ordinance that said a police officer 'shall order' persons to disperse in certain circumstances. This court rejected out of hand the possibility that the mandatory language of the ordinance afforded the police no discretion. It is, the Court proclaimed, simple common sense that all police officers must use some discretion in deciding when and where to enforce city ordinances.
“Against this backdrop, a true mandate of police action would require some stronger indication from the Colorado Legislature than 'shall use every reasonable means to enforce a restraining order' (or even 'shall arrest . . . or . . . seek a warrant') * * * The practical necessity of some discretion is particularly apparent in a case such as this one, where the suspected violator is not actually present and his whereabouts are unknown. * * * ”
After reviewing numerous cases, some going back to the 1800's and also relying on Blackstone's Commentaries on the Laws of England of 1769, Justice Scalia concluded:
“The creation of a personal entitlement to something as vague and novel as enforcement of restraining orders cannot simply go without saying. We conclude that Colorado has not created such an entitlement.”
NO “ENTITLEMENT” MEANS NO PROTECTED “PROPERTY INTEREST”
The Court then went on to add that even if it were to find the existence of an entitlement, it would by no means be clear “that an individual entitlement to enforcement of a restraining order could constitute a property interest for purposes of the Due Process Clause of the Fourteenth Amendment.” Its ruminations on possibly relevant state and federal cases led Justice Scalia to conclude that Mrs. Gonzales did not have a property interest in police enforcement for which non-enforcement she could seek relief and damages.
WHAT DOES THE CASE TEACH LAW ENFORCEMENT?
Law enforcement authorities should bear in mind a couple of important points about this case.
First, in the absence of any Colorado Supreme Court decision on whether use of the word “shall” in the enforcement statute was intended to do away with the traditional police discretion, the United States took it upon itself to decide this as a matter of law. And it decided that when the Colorado statute provided that police “shall” arrest the offender, the Legislature nevertheless had not intended to do away with traditional police discretion.
But what if the Colorado Supreme Court, or any other state supreme court in a jurisdiction with a similar statute, were to indeed decide that the “shall” language was a mandatory command to arrest, would then a police failure to do so create a due process violation? We certainly do not know the answer to that question. It will require a new Supreme Court decision to resolve that issue. But in the Castle Rock v. Gonzales case, Justice Scalia did intimate, in dictum, that officers would still retain significant discretion, especially when the violator is not presently before them. This language is, of course, not part of the Court's holding. It does suggest, however, what the thinking of Justice Scalia - the opinion's author - is. He mused that the fact the statute did not spell out when police should arrest rather than seek an arrest warrant, or when they might take some other “reasonable means” to enforce the TRO, was indicative of the amount of police discretion that remained.
Second, the Court was clear in stating that the “entitlement” issue in a state stature would have to be spelled out clearly and unambiguously by the legislature or by a state court decision interpreting the statute, if there was to be any reasonable chance of confronting that issue on federal due process grounds. In light of the nationwide dissatisfaction with the reluctance of police to enforce domestic abuse protection orders, and reaction to this case by abused spouses groups, there may well be a groundswell of movement to cause legislatures to enact statutes making enforcement of such orders not only truly mandatory, but also specifying that there is no police discretion in such cases.
Law enforcement officers may well applaud the Supreme Court's ultimate decision not to extend police liability on federal grounds in cases of this nature. But most police are also parents. And as parents, they should also be concerned that a policy not to enforce domestic abuse orders, or evidencing laxity in requiring enforcement, and that this has caused a number of avoidable deaths causing great anguish among the public. This anguish is likely to spill over into legislative action of the type the Supreme Court suggested was needed if non-enforcement was to become a due process violation. Thus, the enactment of statutes specifically doing away with police discretion and making clear that law enforcement has a duty to act in such cases perhaps ought to result.
Third, the decision does not bar states from giving injured parties the right to hold police liable in damages for failure to enforce protection orders in domestic abuse cases. Indeed, the Colorado statute may well give plaintiffs such a right in egregious cases as were presented in the Castle Rock and other similar widely publicized cases that resulted in deaths or injuries to abused spouses or children. Thus, while Mrs. Gonzales may have lost her federal case, she may yet obtain recovery under state law if the Colorado courts decide that “mandatory” did mean “mandatory.” The United States Supreme Court specifically stated in the Castle Rock v. Gonzales opinion that its holding “does not means States are powerless to provide victims with personally enforceable remedies.”
Also click on Kennedy v. City of Ridgefield, discussing a closely related issue.
There were two dissenters in the Castle Rock case. There were also two justices who concurred in the Court's majority opinion, but their concurrence indicates the justices might be persuaded to go the other way under different circumstances. This leaves a seven-to-two Castle Rock decision in favor of law enforcement vulnerable to a potentially five-to-four outcome in a future case - far from the solid majority law enforcement might desire in Supreme Court decisions.
