I hate it when things don't work out as I plan.
For my law review case note proposal, I was hoping to do TOWN OF CASTLEROCK, CO V. GONZALES (04-278), which is to be argued before the US Supreme Court on Monday. This is an exceedingly important case in the area of domestic violence. The following is a bit of an oversimplification.
The short version of the facts is that a woman in Castlerock, CO had a protection order against her partner, with whom she had three daughters. When the daughters disappeared one evening, she suspected the father took them, which was later confirmed by direct contact with him. The protection order specified he was to have no contact with the mother or the daughters, with some exceptions. The mother (Gonzales) called the police department five times over the course of the evening, sometimes with specific information on the location of the father and daughters. Each time, she was told to call back later. Eventually, the father showed up at the police department, opened fire on the building, and was shot dead. The police found the bodies of his daughters in the back of his truck; he had killed them before his suicide-by-cop.
Gonzales attempted to sue the city under 42 USC 1983 for violation of her and her daughters' due process rights. The trial court examined cases for both substantive and procedural due process and dismissed the case under both. A panel of the 10th Circuit reversed with respect to the procedural due process grounds, and an en banc hearing of the 10th Circuit did the same. The Circuit essentially said that the mandatory enforcement language in Colorado statute created a property interest in the enforcement of the protection order, which should not have been revoked without some kind of procedure with notice an opportunity to be heard.
This case is very important because on a policy level, reversal would remove any real incentive for law enforcement to enforce domestic violence protection orders. Given the peculiar history of domestic violence in our country, many law enforcement agencies look at DV in general and POs in particular as burdens and would rather not deal with them. My own experience in an advocate in a place that I consider to be far from the worst law enforcement environment is abysmal. Police routinely failed to arrest, or even contact, offenders when clear proof of violation of a protection order. In 4.5 years, I saw exactly two prosecutions (and convictions) for protection order violations. Granted, I didn't see everything, but for a large portion of that time I actively followed all DV-related activity in the local court.
This sounds like it would be a perfect case for a case note, and it probably would be if the dissent didn't make such a darn good argument that the procedural due process argument is basically a substantive due process argument flipped around. Additionally, there is compelling evidence that the Colorado legislature didn't mean to create the property right that the majority found. This means that the case could be reversed on simple threshold issues before the Court gets to any of the interesting, widely applicable grounds. And I have a feeling that is exactly what will happen.
I'm reserving final judgment until I see a transcript of Monday's oral arguments, but right now I'm looking at another case.
And to top it all off, the advocate in me is screaming for the Court to affirm. Everything in my experience tells me that the only way to get law enforcement to consistently take PO violations seriously is to open them up to civil litigation. And if police aren't going to take them seriously, what's the point of having them?
Sounds like a Very interesting topic!
I was curious. In the dissent, you said it posed a substantive due process issue, such as..? Like are they saying that Gonzales is claiming a right to have the government enforce the protective order for her safety? Which seems valid, doesn't it? Or what is the plan of action if it's a substantive due process claim?
And, I think any good issue is going to have strong recorded dissent. It is very intimidating when the majority of that dissent is from Rehnquist and Scalia as my last casenote was - Display of the Ten Commandments at TX Supreme Ct and Capital.
Well, the basic argument is that the due process Ms. Gonzales was denied was the failure to enforce the protection order, not that they failed to enforce it without due process, and that the majority thus twisted it around to look like a procedural claim when it was sort of substantive in sheep's clothing.
In general terms, you can't sue the government for failing to protect you from something another citizen does. If you get mugged, you can't sue because the government let out your mugger last week. But that was decided in DeShaney as a substantive due process issue (i.e., that it wasn't a substantive denial). The big problem is that the argument that this is really a substantive claim made to look like a procedural claim is a good one. And it looks like SCOTUS is looking at that, from the questions presented.
I think one important point that has been missed from most of what I've read throughout the blogsphere is, should the court hold that there was a property interest in the enforcement of the statute, the obvious result is that legislatures around the country are simply going to remove the MANDATORY language included in their statutes.
This could end up being more detrimental to domestic abuse victims than if no procedural right is found in the first place.
Perhaps, but that's assuming the states don't want to mandate enforcement. In this case, it seems pretty clear that the Colorado legislature really wanted protection orders to be enforced. This decision could provide guidance to those state legislatures and tell them how to make sure the local law enforcement agencies will actually do what the legislature tells them to do.