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Supreme Court: Police Have No Liability for Failing to Enforce a Restraining Order

A question that is often raised in law enforcement is whether there is any duty to protect citizens from the harm they suffer at the hands of a third party. For example, is a witness to a crime entitled to some protection by law enforcement so that no retaliation occurs; and, if the police fail to protect the witness and the witness is hurt or killed, can the witness sue the police under the federal constitution for failing to protect him or her? This question was answered by the United States Supreme Court in Deshaney v.Winnebago County which involved the abuse of a little boy at the hands of his father.

Joshua Deshaney was beaten by his father on several occasions. Although the Department of Social Services was involved in Joshua’s case, they returned custody of Joshua to his dad and failed to take any steps to properly protect Joshua. Joshua suffered further beatings, the final one leaving him with irreversible brain damage. In refusing to find a duty to protect under the substantive due process clause, the Court held that the constitutional provision was enacted to restrict the power of government and not to create affirmative duties upon government entities to protect citizens from third party harm. The Court did indicate that when people are in government custody and cannot protect themselves, the government would have a duty to protect that individual. A prison inmate is an example of situation. This has been the state of the law for many years and has only been distinguished in cases where the person suing law enforcement could show that law enforcement actors did something affirmatively that created or enhanced the danger to an individual.

A tragic case out of Castle Rock, Colorado sought a new theory of liability for law enforcement in cases where law enforcement officers and their agencies failed to enforce protection orders and harm resulted. The theory of liability in Castle Rock was not based on substantive due process (i.e. right to life and liberty), but was based on procedural due process. Under procedural due process it was argued that a restraining order created a property interest in the protected party to enforcement of the order and this property interest could not be deprived without due process of law.

The facts in Castle Rock were tragic, Jessica Gonzalez, the mother of three daughters obtained a restraining order against her husband which restrained him from “molesting or disturbing the peace” of Jessica or her children. “On June 4, 1999, the state trial court modified the terms of the restraining order and made it permanent. The modified order gave respondent’s husband the right to spend time with his three daughters (ages 10, 9, and 7) on alternate weekends, for two weeks during the summer, and, ‘upon reasonable notice,’ for a mid-week dinner visit ‘arranged by the parties’; the modified order also allowed him to visit the home to collect the children for such ‘parenting time.’"

On June 22, 1999 at about 5:30 p.m. Mrs. Gonzalez noticed that her daughters were no longer in the yard where they had been playing. No advance arrangements had been made with her husband but she assumed that her husband had taken the children. At 7:30 p.m. Mrs. Gonzalez called the Castle Rock Police Department and sought their assistance in finding her daughters and enforcing the restraining order. According to the Supreme Court, it is unclear whether Mrs. Gonzalez showed officers the temporary restraining order or the permanent order, which did allow the father to spend some time with his daughters. Mrs. Gonzalez reported that the officers told her there was nothing they could do and to call the police back at ten o’clock if the girls were not returned.

After receiving a call at 8:30 p.m. from her husband who reported that he had the girls at an amusement park in Denver, Mrs. Gonzalez again called the Castle Rock Police Department, asking, among other things, that an all points bulletin be put out for her husband’s vehicle and asking that a check be made of the amusement park. She was again told to wait until ten o’clock to see if the girls were returned.

At ten minutes past ten, Mrs. Gonzalez called the police again and was now told to wait until midnight. At midnight, she drove to her husband’s apartment. Finding no one there she called the police and was told to stand by. After waiting for forty minutes, Mrs. Gonzalez drove to the police station and filed a report. Following the report, no steps were taken by the police to locate Mr. Gonzalez or the daughters.

At three-twenty in the morning, Mr. Gonzalez showed-up at the Castle Rock Police Department’s headquarters and began shooting into the building with a rifle. Officers returned fire and killed Gonzalez. Upon searching his truck they found that Mr. Gonzalez had killed his three young daughters. Mrs. Gonzalez filed a lawsuit alleging that the inaction by the police in enforcing her restraining amounted to a violation of her procedural due process rights under the Fourteenth Amendment and this violation led to the death of her daughters. The United States Court of Appeal for the 10th Circuit agreed with Mrs. Gonzalez theory of liability, which set off this appeal to the United States Supreme Court.

In overturning the 10th Circuit and finding that the police were not liable for the death of the three young girls, the Supreme Court examined several factors:

First the court examined the Colorado statute which mandated arrests for violations of restraining orders Colo. Rev. Stat. § 18-6-803.5(3) (Lexis 1999):

“(a) Whenever a restraining order is issued, the protected person shall be provided with a copy of such order. A peace officer shall use every reasonable means to enforce a restraining order.

“(b) A peace officer shall arrest, or, if an arrest would be impractical under the circumstances, seek a warrant for the arrest of a restrained person when the peace officer has information amounting to probable cause that:

“(I) The restrained person has violated or attempted to violate any provision of a restraining order; and

“(II) The restrained person has been properly served with a copy of the restraining order or the restrained person has received actual notice of the existence and substance of such order.

“© In making the probable cause determination described in paragraph (b) of this subsection (3), a peace officer shall assume that the information received from the registry is accurate. A peace officer shall enforce a valid restraining order whether or not there is a record of the restraining order in the registry.”

In its review of the statute the Court asserted: “It is hard to imagine that a Colorado peace officer would not have some discretion to determine that — despite probable cause to believe a restraining order has been violated — the circumstances of the violation or the competing duties of that officer or his agency counsel decisively against enforcement in a particular instance. The practical necessity for discretion is particularly apparent in a case such as this one, where the suspected violator is not actually present and his whereabouts are unknown.” Thus, the Court, after recognizing the mandatory language of the statute, held there was still some discretion on the part of officers. The Court held that when the subject of the order is not at the scene, the officer could then choose, in accordance with the statute, to seek an arrest warrant. The Court noted that an arrest warrant was not a property interest, but only an interest in some legal process.

The Court stated that even if Mrs. Gonzalez could prove that officers had no discretion, she still would not be able to prove that she had any right to enforcement under the statute. The Court recognized that the government interest in enforcement may not have been to protect individual persons like Mrs. Gonzalez or her children, but may have been more of general desire to protect the public in these cases. Additionally, the Court noted that a review of the statute revealed that the legislature had expressly given protected persons certain rights, like the right to institute contempt proceedings against the subject of the order; the statute did not say anything about a right of a person to demand enforcement and arrest by police. As such, the Court concluded that Mrs. Gonzalez failed to establish that she was “entitled” to this protection by the police.

The Court concluded that even if Mrs. Gonzalez could show that arrest was mandatory and without discretion (even if the offender is no longer at the scene; and, even if she could show that she was entitled to police enforcement of the order, the order did not create a protected property interest under the Constitution thus, law enforcement could not be held liable for the deaths of the three little girls at the hands of their father.

In a sweeping conclusion the Court reiterated its position on the lack of constitutional duty of government actors to protect citizens from third party harm and the ability of states to enact legislation that recognizes such protection as a matter of state law if the state so chooses. The Court held: “In light of today’s decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its ‘substantive’ manifestations. This result reflects our continuing reluctance to treat the Fourteenth Amendment as ‘a font of tort law,’…. but it does not mean States are powerless to provide victims with personally enforceable remedies. Although the framers of the Fourteenth Amendment and the Civil Rights Act of 1871, 17 Stat. 13 (the original source of § 1983), did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people of Colorado are free to craft such a system under state law.”

Key Points:

Law Enforcement generally has no constitutional duty to protect citizens from third party harm.

A duty may be found when law enforcement officers have in some way created or enhance the danger to an individual.

A duty will be found in cases where the person to be protected is in the custody of government against his will and are powerless to protect himself.


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