The US Supreme Court has declined an invitation to bolster significantly legal protections for divorced and battered women and their children.
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.
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.