Justices Take Restraining Order Suit

The Supreme Court agreed Monday to decide whether cities and their police departments can be sued if they fail to enforce restraining orders, such as those issued to protect women from an abusive spouse or boyfriend.

For such women and their children, the effectiveness of restraining orders can be a life-or-death matter. In the case before the court, a mother sued the town of Castle Rock, Colo., after her three daughters were murdered by her former husband.

For constitutional law experts, the case also raises an old question of whether a local government or its officials can violate the Constitution by failing to act.

Typically, police are sued based on allegations that they acted too aggressively and violated a person’s rights. In this case, by contrast, the police were sued for failing to act to protect individuals who were promised protection from a known danger.

Jessica Gonzales sued because she said the Police Department’s failure to act resulted in the death of her daughters. At the time of her divorce from Simon Gonzales, she had obtained a restraining order that required him to stay away from her and her property at all times.

Colorado law says police officers “shall use every reasonable means to enforce a protective order.” But Jessica Gonzales said on the day her daughters disappeared from her front yard, she was unable -- despite repeated phone calls -- to enlist the help of Castle Rock police officers to enforce the restraining order. Castle Rock is south of Denver.

In the early evening, she called her ex-husband on his cellphone and learned that he had taken the girls to an amusement park in the Denver area. According to her complaint, she then called the police, but the officers said there was nothing they could do. They urged her to call back later in the evening if the girls had not returned.

She called police several more times, and even filed a report at the station, but no action was taken. Shortly after 3 a.m., Simon Gonzales showed up at the police station, where he opened fire on officers and was shot and killed. The girls were found dead in the back of his pickup truck.

Jessica Gonzales filed a suit in federal court seeking damages for a violation of her constitutional rights. The case has never been tried, but it reached the Supreme Court because of divisions in the lower courts over whether she had a valid claim.

A federal judge initially threw out her case, but in April the U.S. 10th Circuit Court of Appeals in Denver revived it and said her suit against the town could go to trial.

In a 6-5 decision, the appeals court reasoned that while individuals do not have a “right to receive government protection,” they do have a right not to be arbitrarily denied police protection that is provided under Colorado law. The opinion was written by Judge Stephanie Seymour, a Democratic appointee who was considered for the Supreme Court by President Clinton.

One of the dissenters was Judge Michael McConnell, a former University of Utah law professor who was nominated to the appellate bench by President Bush three years ago.

“Sympathetic as we are, and should be, to persons in Ms. Gonzales’ unhappy situation,” he said, the police did not violate her constitutional rights by failing to act. To rule for her would “expand greatly the liability of state and local governments,” he added.

The key precedent in the Supreme Court is a 1989 opinion in DeShaney vs. Winnebago County, written by Chief Justice William H. Rehnquist.

Child-care workers in Winnebago County, Wis., had been warned that Joshua DeShaney was being repeatedly beaten by his father and were supposed to monitor the family. The boy suffered brain damage, and his divorced mother sued the county for failing to do its duty.

In his opinion, Rehnquist said that local and state governments could not be sued for failing to act. The 14th Amendment to the Constitution says no state “shall deprive any person of life, liberty or property without due process of law” and Rehnquist said the word “deprive” suggested that officials violate this clause only by affirmatively acting to take away a person’s life, freedom or property.

In the current case, lawyers for Castle Rock say the DeShaney decision makes it clear that police cannot be held liable for acts of “private violence.”

“If allowed to stand, the [appeals court] decision would render DeShaney a dead letter and could bankrupt municipal governments in the process, given the inevitability of less-than-perfect enforcement,” they said.

Police officers, firefighters and ambulance drivers could be faced with countless lawsuits, they added, if the high court ruled that a failure to act violates the Constitution.

The National League of Cities, the International Municipal Lawyers Assn. and the Denver Police Protective Assn. also filed briefs urging the court to take up the case of Town of Castle Rock vs. Gonzales.