Castle Rock v Gonzales

In May 1999, Simon Gonzales abducted his three daughters as they played outside their mother's home. His ex-wife called the police who declined to arrest Mr. Gonzales, despite probable cause that he was violating the restraining order against him, and despite the Colorado law mandating enforcement of restraining orders. Later that night, Mr. Gonzales shot his daughters to death. His ex-wife sued the Castle Rock police department for $30 million, arguing that CRPD violated the Due Process clause of the Fourteenth Amendment.

In Castle Rock v Gonzales the Supreme Court voted 7-2 that a person who has obtained a state-law restraining order has no constitutionally protected property interest in having the police enforce that order. Katie TafollaYoung has a good summary of the case and the ruling at SCOTUSblog, and further analysis here.

I think the outcome was correct, but I have serious reservations about some of Scalia's reasoning. The Fourteenth Amendment says that a State shall not “deprive any person of life, liberty, or property, without due process of law.” As I'll argue later on, the Castle Rock police department probably didn't violate Mrs. Gonzales's property rights. The CRPD did, however, violate Colorado law when it ignored her pleas to enforce the order.

Scalia writes:

Resolution of the federal issue begins, however, with a determination of what it is that state law provides. In the context of the present case, the central state-law question is whether Colorado law gave respondent a right to police enforcement of the restraining order.

Here's the boilerplate from the restraining order against Gonzales:

The preprinted text on the back of the form also included a “NOTICE TO LAW ENFORCEMENT OFFICIALS,” which read in part:

“YOU SHALL USE EVERY REASONABLE MEANS TO ENFORCE THIS RESTRAINING ORDER. YOU SHALL ARREST, OR, IF AN ARREST WOULD BE IMPRACTICAL UNDER THE CIRCUMSTANCES, SEEK A WARRANT FOR THE ARREST OF THE RESTRAINED PERSON WHEN YOU HAVE INFORMATION AMOUNTING TO PROBABLE CAUSE THAT THE RESTRAINED PERSON HAS VIOLATED OR ATTEMPTED TO VIOLATE ANY PROVISION OF THIS ORDER AND THE RESTRAINED PERSON HAS BEEN PROPERLY SERVED WITH A COPY OF THIS ORDER OR HAS RECEIVED ACTUAL NOTICE OF THE EXISTENCE OF THIS ORDER.”

In an attempt to get tough on domestic abusers, the Colorado legislature eliminated police discretion in the enforcement of restraining orders. Scalia tacitly admits that the intent of the Colorado legislature was to make enforcement mandatory. He also concedes that "in the specific context of domestic violence, mandatory-arrest statutes have been found in some States to be more mandatory than traditional mandatory-arrest statutes." Nevertheless, he concludes:

We do not believe that these provisions of Colorado law truly made enforcement of restraining orders mandatory. A well established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.

Evidently, police folkways trump State laws. Nice federalism, there, Nino.

The Majority found that the 14th Amendment doesn't apply to restraining orders because a restraining order isn't property or a property interest.

The dissenting justices held that Mrs. Gonzales had a property interest because police protection is a valuable government service. When the police decline to enforce a restraining order, they are withholding a service with a cash value.

However, even if police protection is a valuable service mandated by law, it doesn't follow that the protection of a restraining order belongs to the person protected by the order. Restraining orders aren't like stock options. If Y gets a court order against X, it doesn't mean that Y "owns" the benefits of that restraining order. When the police enforce a law (or a court order), they are providing a service to the entire community, not just to victims or potential victims. So, it's difficult to argue that any individual's property rights are violated if the police fail to enforce a restraining order.

I would argue that the CRPD violated the rights of everyone in Colorado when they disregarded state law. Gonzales probably didn't have a property interest in the enforcement of her restraining order. However, one would think that Colorado legislators ought to be able to regulate the scope of police discretion in cases where broad "discretion" is a systematic barrier to effective law enforcement.

Comments

[Scott Lemieux]

Actually, Scalia does have a point--after all, criminal laws are almost always written in categorical terms, and yet everybody understands that police have some discretion in enforcememt. I think it goes beyond mere "folkways"; if police were liable every time they didn't enforce a categorical law, the state wouldn't have the revenue for anything else.

What makes this case different, though, is that the state *changed* its law abotu injunctions because the previous laws were underenforced. So this case is a little different. There's a potential 14th Amednement violation if the state is *systematically* failing to protect a class of people. I'm not sure the evudence is there, but the action of the legislature suggests that there's a possible argument there.

[Amanda Marcotte]

But what would the Constitutional argument be in that case? I'm obviously not a legal person, but it seems to me there has to be a way to force the cops to take domestic violence seriously if they are unwilling to do it themselves.

One useful tool has been police training, at least. Which, if the VAWA is allowed to run out without being renewed, will disappear and problems like this will get worse.

[Lindsay Beyerstein]

The dissenting opinon held that the police had been specifically failing to enforce restraining orders in domestic violence cases. In response to a percieved crisis in domestic violence enforcement, 15 states passed legislation in the mid-90's to mandate police enforcement of restraining orders.

[Matt]

Scott,
The difference (it seems) between this law and a normal criminal law is that a normal criminal law says nothing in the law itself about police enforcement. The police swear to uphold the laws, and so have a duty to enforce them. But, it's regularly been held that they are the best judges at how to use limited police resources, and so can sometimes decide to not make an arrest where one might be acceptable under the law. But, this law, it seems (and the other domestic abuse one Lindsay notes) have specific clauses in them that say that the police are not supposed to exercise discretion in the area. Whether that's a good idea or not I don't know, but it does seem to undercut Scalia's reasoning. Given that, I also think that Lindsay is exactly right that this law doesn't create a property interest in the enforcement of the law, nor does it create a private right of action against the police. Maybe it should (under a negligenc theory, perhaps) but from what I can gather, it doesn't seem to, despite the explicit "no discression" clause, which isn't in a normal criminal law.

[Liberal Chris]

Imagine some factory is polluting a lake on your property. If EPA fails to stop the pollution, can you sue EPA? What if EPA orders the factory to stop but the factory doesn't. Can you sue the police for not enforcing the EPA order?

My point is this. If we allow people to sue the enforcers, we get ourselves in a very difficult position. As a society, we are not made better off by extensive lawsuits alleging "the state didn't enforce the law well enough."

[stork]

This is a sovereign immunity. The sovereign is always right. You can't sue the government, but you can vote for a new one.

If you want to defend yourself, buy a gun.

[The Continental Op]

Much as I hate to admit it -- being of the opinion that Scalia, contrary to received opinion even among most liberals, is a result-oriented hack lacking in any intellectual integrity -- Scalia's interpretation of the statute here is not without merit. The wording of the restraining order (which I presume follows the wording of the statute) says "you shall arrest" (emphasis added). Whatever a linguist might say, the legal significance of the word "shall" in a statute or contract is indeed ambiguous. In numerous cases, the Supreme Court has held that "shall" does not mean "must", especially when it is directed to the government -- precisely for the reason that Scalia identifies (i.e. the term must be read to accommodate governmental discretion). This is why I teach my students to avoid "shall" like the plague and to use "must", "may", etc. instead.

Granted, the legislative history would no doubt weigh in favor of interpreting "shall" in this case to be mandatory. But, Scalia is highly scornful of legislative history as a guide to statutory interpretation (and not, I must say, without reason). So it isn't surprising that he wouldn't give that much, if any, weight.

So, while I'd probably conclude that the statute is meant to me mandatory, I'd have to concede that reasonable minds can differ on that question.

As for the merits, I've not yet read the case, but I suspect Lindsay is essentially right. It is a bad idea to treat law enforcement as an individually-enforceable property right, for the reasons Lindsay and others have identified.

Sidenote: Katie Tafolla Young's husband was one of my students this past year! I must go read her post right away.

[razor]

"reasonable minds can differ on that question."

When can't they?

[Robert W Vivian]

Interesting