Court sides with police in restraining-order case
The US Supreme Court has declined an invitation to bolster significantly legal protections for divorced and battered women and their children.Skip to next paragraph
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In a case closely monitored by groups supporting victims of domestic violence, the nation's highest court ruled Monday that domestic restraining orders do not trigger a constitutional right to government protection against harm from private individuals.
The 7-to-2 decision comes in the case of a Colorado woman whose three daughters were murdered by her estranged husband after he allegedly violated a restraining order and abducted the girls.
Jessica Gonzales made five telephone calls and a personal visit to the Castle Rock Police Department over an eight-hour period urging police to find the girls immediately and arrest her husband, Simon Gonzales. Police declined to act, suggesting she wait until her husband brought the girls home.
The central question in the case is to what extent Mrs. Gonzales's court-issued protective order created a constitutionally backed entitlement to prompt enforcement by police.
The 10th US Circuit Court of Appeals in Denver had ruled 6 to 5 in 2004 that such an order, backed by a tough-worded Colorado enforcement statute, does create such a constitutional entitlement.
On Monday, the Supreme Court reversed that decision. The majority justices said a domestic restraining order does not create a "property interest" in prompt police enforcement of the order. "A benefit is not a protected entitlement if government officials may grant or deny it in their discretion," writes Justice Antonin Scalia for the majority.
He says that even though Colorado law directs police to "use every reasonable means to enforce a restraining order," the state law does not make such action mandatory. "A true mandate of police action would require some stronger indication from the Colorado legislature," Justice Scalia writes.
In a dissent joined by Justice Ruth Bader Ginsburg, Justice John Paul Stevens writes that such a property interest in prompt enforcement of a restraining order might be created through a state law. He says such a question should be resolved by the Colorado Supreme Court, not the US Supreme Court.
"There was a time when our tradition of judicial restraint would have led this court to defer to the judgment of more qualified tribunals in seeking the correct answer to [this] difficult question of Colorado law," Justice Stevens writes.
The decision is a setback for women's rights groups that had hoped the high court would put local governments on notice that they must make fighting domestic abuse a priority or risk constitutional consequences. They warned that protective orders work only when they are enforced. Lax enforcement of restraining orders increases the danger to domestic violence victims, they say.
Others see the high court's ruling as preventing open-ended liability for local governments nationwide that provide protective and rescue services. Had the 10th Circuit decision been upheld, these analysts say, it would have unleashed a flood of constitutional lawsuits whenever questionable law-enforcement or rescue tactics result in a serious injury or fatality.
The Supreme Court decision stems from a June 1999 incident in which three sisters were taken away by their father while playing outside their house in the early evening. The family was in the midst of a divorce.
As part of the divorce proceedings, Mrs. Gonzales had obtained a restraining order barring her husband from her home without her permission. But the order also mandated parental access between Mr. Gonzales and his daughters every other weekend and for "a mid-week dinner visit."
After discovering the girls were gone, Mrs. Gonzales suspected her husband had taken them without her permission in violation of the restraining order.