SCOTUSblog - Discussion: A Debate Over Castle Rock

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Tuesday, June 28, 2005

A Debate Over Castle Rock

Castle Rock | Posted by Tom Goldstein at 06:53 PM

We're pleased to host a debate over the Court's recent Castle Rock decision between the city's lead attorney (John Eastman) and the lead attorney for some of the principal amici supporting the respondent, Richard Smith of McDermott Will & Emery. (You can see the SCOTUSblog write-up of the case here.) We held a similar debate on SCOTUSblog regarding the beef ads case. We'll have a new post each day, alternating sides, with four posts in total.

John Eastman begins the debate:

Castle Rock v. Gonzales, decided by the Supreme Court on Monday, June 27, presented the federal courts with a tragic set of facts. Simon Gonzales, an estranged husband and father of three little girls, took his daughters out for a mid-week dinner visit in June, 1999, as the standard-form restraining order that had been issued against him explicitly authorized. Tragically, before the night was out, he had shot and killed his three daughters and then committed “suicide by cop” by opening fire on the Castle Rock, Colorado police station.

The wrongdoer here was quite obviously Simon Gonzales, but the girls’ mother filed a $30 million federal lawsuit against the Town of Castle Rock and three individual police officers, claiming that the police violated her constitutional rights by not arresting Simon when she first alleged he had the girls in violation of a restraining order that told police to use every reasonable means to enforce it and that they “shall arrest or seek a warrant for an arrest” if they had probable cause to believe that the restraining order was being violated.

During oral argument in Castle Rock v. Gonzales, Justice Breyer asking Brian Reichel, attorney for Mrs. Gonzales, why he chose to ask the federal courts to invent a new constitutional entitlement to police enforcement of restraining orders rather than simply pursue the tort remedies that were available under Colorado state law. Mr. Reichel’s response was quite telling: Colorado law required that he prove causation and foreseeability—in other words, that the police department’s alleged inaction actually caused the harm to the Gonzales girls, and that the harm was foreseeable. Mr. Reichel implicitly conceded that he could not prove causation and foreseeability, so he sought to create a constitutional remedy for failure to act that would not put him to those pesky proof requirements.

The Supreme Court has repeatedly held that the Constitution should not become a substitute for state tort law, and it reiterated that position on Monday. Even constitutional law scholars who wish the rule were otherwise, such as Duke Law Professor Erwin Chemerinsky, have conceded that “the Supreme Court clearly followed precedent” in this case. It is precedent that is both common sensical and compelling. Without it, municipal governments would find themselves subject to massive liability every time they failed to foresee criminal conduct, or failed to arrive on the scene of a fire, or prevent a riot, in time to protect citizens against the tortuous conduct of their fellow citizens whenever the state has used the word “shall” to give guidance to police or firefighters or paramedics in the daily performance of their jobs. The State of Colorado may want to commit itself to the expense of 24-hour-a-day police protective services, and a “drop-everything” command to enforce restraining orders, but the Supreme Court made clear on Monday that the federal courts should not be in the business of creating such a “zany property right,” to use Justice Scalia’s phrase, without a much more clear indication of Colorado’s intent than the use of the word “shall.”

In other words, the Supreme Court rightly interpreted the Colorado statute against the backdrop of the discretion that police need to do their jobs every day. Here, police drove out to meet with Mrs. Gonzales immediately after her first telephone call. The Town of Castle Rock put two officers—50% of the force on duty that night—on the investigation to try to locate Simon Gonzales and his daughters. Those officers searched for Mr. Gonzales’s truck from one end of town to the other. They did not put out a statewide All Points Bulletin, but under the circumstances known to them at the time (rather than with the benefit of hindsight), an APB was clearly not warranted to track down a father who was out for a mid-week dinner visit with his daughters, as he was permitted. It would be nice if police could anticipate every crime before it happens, but the Supreme Court was right not to allow the creation of a federal constitutional case for their inability to predict this particular tragedy.

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