Court sides with police in restraining-order case

She called the police to have him arrested. She says Castle Rock officers made no attempt to locate her daughters and apprehend Mr. Gonzales.

At 3:20 a.m., Mr. Gonzales arrived at the police department and opened fire with a semiautomatic handgun he had purchased earlier that evening. Police shot and killed him. They then discovered the bodies of the Gonzales daughters, ages 7, 9, and 10, in the cab of the truck. Police said they were murdered by their father.

Mrs. Gonzales sued the City of Castle Rock for $30 million, claiming the police department had failed in its obligation to enforce the restraining order. The implication of the suit is that had police acted promptly, the daughters might still be alive.

The City of Castle Rock denies that its police officers acted improperly. According to city officials, police reports and 911 tape recordings show that police officers asked Mrs. Gonzales if she thought her daughters were in any danger. She responded "no," a city press statement says. Police also asked Mrs. Gonzales if her husband had any weapons. She said she didn't think so, according to the Castle Rock statement.

The city says its officers made "multiple attempts that evening to locate Simon Gonzales and his daughters." The statement adds, "Information at that time did not indicate in any way that Simon Gonzales was going to commit this awful crime against his children."

Rather than attempting to prove negligence on the part of the city and its officers, Mrs. Gonzales's lawyer filed a different kind of lawsuit. He charged that the city had violated his client's constitutional right to due process as guaranteed by the 14th Amendment.

The Gonzales restraining order, once issued, became the equivalent of property owned by Mrs. Gonzales, he argued. In effect, it guaranteed prompt action by police against her husband should he violate the court order.

Lawyers for the city said such constitutional claims were barred under a 1989 US Supreme Court precedent. In addition, they said that the police must retain discretion to decide when and how restraining orders will be enforced.

At the 10th Circuit, the majority ruled that Mrs. Gonzales had a "property interest" in the court order. By failing to act through proper procedures, the police rendered that "property" useless, in effect taking it away from Mrs. Gonzales without the due process required by the 14th Amendment and state law, the appeals court ruled.

"The police never engaged in a bona fide consideration of whether there was probable cause to enforce the restraining order," the court ruled. "Their response ... was a sham which rendered her property interest in the restraining order not only a nullity, but a cruel deception."

In overturning the 10th Circuit decision, the majority justices said: "We do not believe that these provisions of Colorado law truly made enforcement of restraining orders mandatory."

Scalia says that police retain discretion in their crime-fighting methods and tactics, even in jurisdictions where mandatory arrest statutes have been enacted.

Stevens disagrees. He says that Colorado law creates a property interest for Mrs. Gonzales. "If [Gonzales] had contracted with a private security firm to provide her and her daughters with protection from her husband, it would be apparent that she possessed a property interest in such a contract," he says.

"Here, Colorado undertook a comparable obligation, and [Gonzales] - with restraining order in hand - justifiably relied on that undertaking," Stevens writes.

Instead of protection, Stevens says, the police response was nothing more than a "sham or a pretense."

• Linda Feldmann contributed to this report.

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