High Court Shields Police Who Fail to Enforce Restraining Orders

The Supreme Court ruled Monday that police departments can’t be sued for failing to enforce restraining orders, a decision hailed by local governments but decried by organizations trying to protect victims of domestic violence.

In the 7-2 decision, justices spurned the contention of a Colorado woman, whose three children were murdered by her ex-husband, that she had a constitutional right to police enforcement of a restraining order that had been issued by a state court judge.

The decision stemmed from a case that Justice Antonin Scalia, who ruled against the woman, characterized as “undeniably tragic.” In May 1999, when Jessica Gonzales got her divorce, she obtained a restraining order that barred ex-husband Simon Gonzales from molesting or disturbing her or their children. He also was ordered to stay at least 100 yards away from the family home, except when she agreed that he could pick the children up for “parenting time” that was permitted under the divorce.

In capital letters, the order stated emphatically that police “shall” use all reasonable means to protect her and her children and that Simon Gonzales could “be arrested without notice” if a law enforcement officer had probable cause to believe that he had violated the order.

Early one evening, a few weeks after the order had become final, Jessica found that her children were missing. She called the Castle Rock, Colo., police at 7:30 p.m. Two officers came to her home. She showed them the restraining order and requested that they enforce it immediately. The officers said they could do nothing and suggested that she call back if the children were not home by 10 p.m., according to the decision.

At 8:30 p.m., Jessica reached Simon on his cellphone. He told her that he had the children at an amusement park in Denver. She called police and asked them to have someone “check for” him or his vehicle at the park. The officer she spoke to refused and told her to call back at 10 p.m.

Jessica called the police at 10:10 p.m. and told them that her children were still missing. This time, she was told to wait until midnight. She called the police at midnight and reported that the children were still missing. Then, she went to her husband’s apartment, found no one and called police. She was told to wait until an officer arrived. When none came, she went to the police station at 12:50 a.m. and filed an incident report.

About 3:20 a.m., Simon Gonzales showed up at the police station, where he opened fire on officers and was shot and killed. Officers discovered the bodies of the children, ages 7, 9 and 10, in the back of his pickup.

Jessica Gonzales sued in federal court, asserting that the Police Department’s “official policy or custom of failing to respond properly to complaints of restraining order violations” had violated her rights under the Constitution’s due process clause. A federal judge in Denver dismissed the suit.

But the U.S. 10th Circuit Court of Appeals reinstated it, holding that Gonzales had a “protected property interest in the enforcement of the terms of her restraining order.” The appeals court said the town had deprived her of due process because the police never “seriously entertained her request to enforce and protect her interests in the restraining order.”

The appeals court said to rule against Gonzales “would render domestic abuse restraining orders utterly valueless.”

That statement was branded “sheer hyperbole” by Scalia in his majority opinion Monday. “We do not believe that these provisions of Colorado law truly made enforcement of restraining orders mandatory.”

Scalia said police had to be given discretion on when to act for a number of reasons, including “insufficient resources and sheer physical impossibility.”

Scalia also rejected Gonzales’ claim that she had a “property right” in having her restraining order enforced. “The creation of a personal entitlement to something as vague and novel as enforcement of restraining orders cannot ‘simply go without saying,’ ” Scalia wrote.

In his dissent, Justice John Paul Stevens said Jessica Gonzales’ “description of police behavior in this case and the department’s callous policy of failing to respond properly to reports of restraining order violations clearly alleges due process violations.”

Colorado, like other states, had stiffened its laws in response to evidence that police failed to enforce domestic violence restraining orders, Stevens said.

Gonzales said she was disappointed. “I will continue to raise awareness around this issue so that my daughters will not have died in vain,” she said.

Esta Soler, president of the Family Violence Prevention Fund, which filed a friend-of-the court brief, said the ruling “delivered a serious blow to victims of domestic violence who count on local police to protect them and their children. The court is allowing gross negligence to go completely unpunished.”

But Chapman University law professor John C. Eastman, who argued for Castle Rock at the Supreme Court, applauded the decision.

“I think the justices rightly understood that if you deprived police of the necessary discretion in how they respond to these calls, it would mean that they would have to drop everything every time a call comes in from someone with a restraining order,” he said.

In the majority opinion, Scalia said the ruling “does not mean states are powerless to provide victims with personally enforceable remedies.... The people of Colorado are free to craft such a system under state law.”

The American Civil Liberties Union, in a friend-of-the-court brief, said Montana and Tennessee supreme courts had held that police could be sued when they did not enforce domestic violence restraining orders.