FACTS:
The facts of this case are brutal and tragic. In the midst of an ongoing divorce proceeding, respondent Jessica Gonzales obtained a temporary restraining order (TRO) against her husband, Simon Gonzales. The order barred Mr. Gonzales from the family home, prohibited him from "molesting or disturbing the peace of" Ms. Gonzales and their three young daughters, and granted him only limited visiting rights with his daughters. The order also specifically directed law enforcement officials to (1) "use every reasonable means to enforce" it; and (2) arrest anyone who violated the order.
On the afternoon of Tuesday, June 22, 1999, Ms. Gonzales discovered that her three daughters were missing. She suspected that Mr. Gonzales had taken them, and called the Castle Rock Police Department around 7:30 p.m. for assistance. Two officers came to her house. She showed them a copy of the TRO and asked them to enforce it, but they "stated that there was nothing they could do about the TRO and suggested that Plaintiff call the Police Department again if the three children did not return home by 10:00 p.m." An hour later Ms. Gonzales reached Mr. Gonzales on his cell phone and learned that the children were with him at a Denver amusement park. Again she called the Castle Rock Police Department and asked the same police officers to find and arrest Mr. Gonzales. The officers refused and again asked Ms. Gonzales to call back at 10:00 p.m. if her daughters had not yet returned. At 10:00 p.m., her daughters still missing, Ms. Gonzales called the police and was told to call back at midnight. At midnight, still with no sign of her daughters, she called the police again, then drove to Mr. Gonzales's apartment, which was empty. She made a final call from her ex-husband's apartment complex, but no police officer ever showed up. Finally, Ms. Gonzales drove to the Castle Rock Police Station herself at 12:50 a.m. and asked for help. The officers took an incident report but otherwise did nothing.
At 3:20 a.m., Simon Gonzales drove to the Castle Rock Police Station and opened fire with a handgun. The police shot him dead at the scene. Moments later, they discovered the bodies of Ms. Gonzales's three daughters in the cab of Mr. Gonzales's truck. He had murdered them earlier that evening.
ISSUES:
1. Whether the Fourteenth Amendment provides a procedural due process claim against a local government for its failure to protect the holder of a partial restraining order from private violence, even though this Court has already rejected a similar substantive due process claim in DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189 (1989).
2. If so, what kind of process is due for police inaction with respect to a partial restraining order?
As TalkLeft points out, there are problems with mandatory arrest laws:
Mandatory arrest laws were enacted to correct a perceived problem -- the willingness of officers to drive an accused abuser around the block to let him "cool off" before returning home, rather than taking him to jail. In practice, the laws often result in arrests that accusers would prefer not to happen. Accusers who call the police hoping that their spouses will be lectured or driven around the block to "cool off" are frequently surprised when they find themselves driving to the police station (or a courthouse) to post bail for the spouse they've inadvertently caused to be arrested.
The value of mandatory arrest laws is debatable, particularly when police aren't required to arrest individuals who probably committed much more serious crimes. The laws put the police in a tough position. A wife who calls the police expecting a "cool him off" response may be shocked to learn that the police, as a result of her call, will cart her husband off to jail, and may beg the police not to make an arrest. The officer then confronts a difficult choice: disregard the law and honor the wife's request, or follow the law and make a bad domestic situation even worse.
I can think of two additional counter-arguments: 1) Abuse is about power and control, and any solutions to abuse must involve return of empowerment to the survivor. Mandatory arrest laws further deprive them of power. So while they may be productive in sending the message that society takes the crime seriously and will prosecute it, they are counter-productive in the particular instance in furthering the survivor's feelings of learned helplessness. 2) If the police were called by the survivor to diffuse a bad situation before it went off the deep end, hauling an abuser off to jail might have exactly the opposite effect. Now the survivor is a target of an enhanced rage and while restraining orders are nice, they're more tools to punish further conduct rather than effective preventative measures.
It's an interesting, if tragic, case. Earlier rulings are linked in the SCOTUS post.
UPDATE:
I forgot to mention Gonzalez' attorney is a Drake grad?
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