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Wednesday, June 29, 2005
The Castle Rock Debate Continues
Castle Rock | Posted by Tom Goldstein at 09:30 PM
Richard Smith responds to John Eastman's opening post in the debate over the Castle Rock case:
Let me first thank Tom and ScotusBlog.com for inviting me to participate in this online discussion. Along with others in my law firm McDermott Will & Emery, I had the honor of serving as pro bono counsel for a collection of law enforcement organizations in this case, and on behalf of those law enforcement groups filed an amicus brief in support of Ms. Gonzales.
Two points initially struck me as I read John Eastman's provocative initial posting. First, I was puzzled by John's description of the facts of the case, a description that has been amplified by the town in media interviews over the past few months. Second, I was intrigued by John's (accurate) statement that the Supreme Court interpreted the Colorado statute "against the backdrop of ... discretion." Because the Colorado Legislature enacted the mandatory enforcement statute precisely to eliminate that historical discretion, it is curious that the Gonzales Court would interpret the state statute following a guiding principle that enhances discretion. The unintended result leaves states with few legislative options.
I have tremendous respect for John, who is a fine advocate and who served his client well in this case. But in his initial posting here, as the town as done in its briefs to the Court, he has consistently mischaracterized the operative facts. He has argued that the Castle Rock police responded appropriately to Ms. Gonzales and worked hard to find her children. But in the procedural posture of this appeal, we are required to assume that Ms. Gonzales's rendition is true. It follows:
On May 21, 1999, Ms. Gonzales obtained from a Colorado court a temporary restraining order against her estranged husband, Simon Gonzales. In part because Mr. Gonzales's history of suicidal threats and erratic behavior, the restraining order ordered Mr. Gonzales not to molest or disturb the peace of Ms. Gonzales or her three children and excluded him from the family home. When made permanent on June 4, 1999, the restraining order was slightly modified to allow Mr. Gonzales occasional visitation with the children in the form of summer and alternating weekend visits and a "pre-arranged, advance notice mid-week dinner visit." Eighteen days after being served with the permanent order, Mr. Gonzales abducted the children from their yard, without advance notice or prior arrangements.
At 7:30 p.m., in a moment that every parent fears, Ms. Gonzales was unable to find her children and called the police or help. She had done everything right; she had obtained a restraining order against her children's assailant and now relied on the police to enforce it. Two detectives were dispatched to her home. She handed them a copy of the restraining order and asked that it be enforced as the law required, and her children returned to her immediately. The detectives responded in but one way: "they stated that there was nothing they could do about the TRO and suggested that [Ms. Gonzales] call the Police Department again if the three children did not return home by 10:00 p.m."
Ms. Gonzales spoke with Mr. Gonzales at 8:30 p.m., who admitted to taking the children. She called one of the detectives who had earlier rejected her pleas, and was again told to wait until 10 p.m. Shortly after 10 p.m., Ms. Gonzales again called police and was told to wait until midnight. She called again at midnight. Nothing. She went to Mr. Gonzales's house, calling from outside on her cell phone, and was told to wait there for police. They never showed up. At nearly 1 a.m., she finally went to the police department itself and demanded assistance. An officer had her fill out a form and went to dinner, making "no reasonable effort to enforce" the restraining order. Two hours later, Mr. Gonzales would arrive at that same police station with his three murdered children and begin firing at it with a handgun he had purchased with the girls that night. He was shot dead at the scene.
Under no circumstances can these events be described as "explicitly authorized" under Ms. Gonzales's restraining order, as John has argued. As alleged, the abduction was neither "pre-arranged," nor with "advance notice"; and at least by 10 p.m., after which Ms. Gonzales made four desperate pleas for help, there is no justification even to believe that it was a "mid-week dinner visit" for three girls as young as seven. John made these same fact arguments to the Court, and it refused to take the bait.
The simple truths are that Mr. Gonzales allegedly violated the restraining order, that the police knew it, and that they ignored their responsibility to act because Mr. Gonzales was the children's father. The tragically violent end is all too familiar. The National Network to End Domestic Violence reports that as many as one out of every three American women say that they have been physically or sexually abused by a husband or boyfriend at some point in their lives. Millions of innocent children witness those acts of violence.
Victims advocates recognize the alleged reaction of the Castle Rock police -- to ignore Ms. Gonzales, to defer her until later in the evening, and ultimately to determine that further action (to use John's words) "was clearly not warranted to track down a father" -- as the time-honored historical standard. Advocates say that police, who typically are men, are loathe to get involved in what are predominately thought of as private, family matters. And it is the police's inherent ability to use discretion to act on that instinct that in many cases prevents them from protecting victims.
Colorado was supposed to be different. Following more than a dozen other states that had recently enacted mandatory enforcement laws, the Colorado Legislature eliminated police discretion in the domestic violence context in 1994, and made enforcement of restraining orders mandatory. The Colorado statute explicitly directed that police "shall use every reasonable means to enforce" restraining orders. In an individual case, that may be by arresting violators, or it by employing other reasonable means, but in all instances, the obligation to enforce was mandatory.
As John implies, the Gonzales Court's interpretation of the Colorado statute, holding that "shall" does not mean "shall," can only be understood as an effort to preserve traditional police discretion. John and the majority opinion correctly point out that many of Colorado's law enforcement statutes seemingly mandate some form of action, yet only in the domestic violence context is it clear that the elimination of police discretion was integral to the statutory scheme. Where elimination of police discretion in responding to domestic violence was the very point of mandatory enforcement statutes, to conclude that a legislature's use of the obligatory "shall" does not really mean "shall" is to say that a legislature is powerless to eliminate police discretion.
Of course, John is correct that "[t]he 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," and some would say it tried to do so here. But despite the Court's seemingly hollow recognition that its decision "does not mean States are powerless" and that "the people of Colorado are free to craft such a system under state law," it is difficult to see how such legislation would be crafted.
If one assumes that Colorado intended to eliminate discretion here, then what language must the state have used to do so? If "shall" was not enough, is "must" qualitatively better? Or was the Legislature to include a boldfaced preamble noting: "We really mean shall this time"?
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Comments
There is nothing "puzzling" about John Eastman's version of the facts. I think the discrepancy in the two versions can be attributed to the "fact" that this case was an appeal from a summary judgment order, which as Richard Smith points out, means that the relevant facts are those that Ms. Gonzales alleged in her complaint. But that does not mean Ms. Gonzales's facts are true, or even that there is any reliable evidence that supports her version. It’s not surprising that the city and its attorney would like to get its version out there considering that they have had to act as if Ms. Gonzales's version was true all throughout the appeals process.
"The simple truths are that Mr. Gonzales allegedly violated the restraining order, that the police knew it, and that they ignored their responsibility to act because Mr. Gonzales was the children's father."
The above quote is most telling. Yes, Ms. Gonzales ALLEGED that Mr. Gonzales violated the restraining order and she ALLEGED that the police ignored her pleas to enforce the restraining order. But alleging that someone did or didn't do something is different than actually proving that at trial. I can allege I am best friends with George Bush, but that doesn't make it so.
Posted by: Fern R at June 30, 2005 01:40 AM
First a disclosure, I wrote the amicus brief on behalf of the National League of Cities et al supporting the Town of Castle Rock. I have been working in local government for 20 years.
There are two court orders in the record of this case. The first is the restraining order that Ms. Gonzales obtained when she filed for a divorce. That order, when it was issued, prohibited Mr. Gonzales from disturbing the peace of Ms. Gonzales and the children. The domestic relations judge crossed the names of the children off of the restraining order when he issued the final order in the divorce. That final order allowed Mr. Gonzales typical visitation rights: every other weekend, two weeks in the summer and a prearranged "midweek dinner visit." Although not prearranged, Mr. Gonzales picked up the girls from in front of the family home on a Tuesday evening.
I believe that a successful argument could be made that at the time of the initial contact with the Castle Rock police department, Mr. Gonzales was not in violation of the restraining order. He had custody of his children under a valid visitation order. Now, was he in violation of that custody order later in the evening? Perhaps, but the only one who could have answered that question is the domestic relations judge who issued the order. After a hearing on the contempt citation.
Could the Castle Rock Police Department done more to look for the three little girls, yes. Would that have changed the outcome in this case, doubtful. It was Mr. Gonzales who murdered these children, not officers of the Town of Castle Rock. He bought the gun after picking up the girls. He could have murdered them on any weekend when he had visitation.
Victims advocates have criticized this ruling as allowing police departments to ignore restraining orders. That is not what the court said, the court has held that the failure of a police officer to act in the face of a restraining order coupled with a mandatory arrest statute does not rise to the level of a federally protected property right. There still may be remedies under state law, including injunctive relief.
Victims advocates have oversold restraining orders. There is some evidence that the service of a restraining order incites a violent retaliatory action. A judges signature does not magically change a piece of paper into a bullet proof shield. Second, most of the police officers I work with get discouraged when the victim invites the abuser back into the home or doesn’t want the family bread winner arrested, just told to stop hitting her.
Posted by: Brad D. Bailey at June 30, 2005 09:33 AM
It seems to me that Richard Smith is engaging in factually unsupported stereotyping of police officers, especially male police officers. He says that "police, who typically are men, are loathe to get involved in what are predominately thought of as private, family matters." The idea that the police think domestic violence is a "private, family matter" is very misguided. Data from the Bureau of Justice Statistics shows that police respond as fully in domestic violence cases involving female victims as in other cases. Moreover, female victims of domestic violence receive much better protection than male victims -- as the Bureau of Justice Statistics and Uniform Crime Reports have both noted, unprovoked killings of wives lead to an average prison sentence of 17 years, compare to only 7 years for unprovoked killings of husbands. An avalanche of data showing that the police do respond to domestic violence and indeed typically provide female victims with greater protection than men is found in the amici briefs filed by the Women's Freedom Network and the Independent Women's Forum in United States v. Morrison (2000), in which the Supreme Court invalidated Subtitle II-C of the Violence Against Women Act. If restraining orders are not enforced all the time, it may have something to do with just how many of those restraining orders are issued (up to 14,000 per year in Colorado, 65,000 per year in Massachusetts), often absent any allegation of physical violence. When I worked for a public interest law firm, the Center for Individual Rights, I was contacted by many people who had restraining orders entered against them. We did not practice in state court, so we could not help any of them. But many of these restraining order cases raised serious due process problems. They were entered ex parte, and extended after hearings in which the accused was denied any opportunity to question the accuser, or in which new allegations were raised for the first time at the hearing after the original allegations were conclusively debunked. Moreover, the objects of the restraining orders included disabled, wheelchair-bound men who posed little physical threat. Beneficiaries of the orders included people with documented histories of making false allegations and severe mental problems. Many of the requests for restraining orders contained conclusory allegations that the complainant was "in fear," without being supported by specific facts to justify the fear. I don't know of any type of court relief that is granted as readily, or on the basis of as little evidence, as a domestic violence restraining order. Granting restraining orders based on non-existent evidence of domestic violence dilutes the ability of the police and the courts to respond to the many bona fide cases of domestic violence that, sadly, do continue to occur in our society.
Posted by: Hans Bader at June 30, 2005 10:57 AM
Justice Scalia's definition of the word shall has changed. See Nino's Dictionary -- or -- The Meaning of "Shall" from Booker to Castle Rock at http://macondolaw.blogspot.com/2005/06/ninos-dictionary-or-meaning-of-shall.html
During Oral Argument in United States v. Booker last October 4, 2004, Justice Breyer and Justice Scalia had the following exchange with Acting Sollicitor General Paul Clements and amongst themselves:
JUSTICE BREYER: All right, if I believe that that is just out of the question, it's so complicated, nobody could do it, it would [*45] be a radical change, Congress could never have intended that, what about a much simpler approach? What you would do is take 3553(b), and you say, "Read the word 'shall' -- i.e. 'shall apply the guidelines' -- to 'may,'" so that the guidelines become advisory, either because the "shall" becomes a "may" or because you give each judge the power to give any reasonable reason at all as to why the Commission's guideline, they didn't actively consider this factor. In other words, read 3553(b) as permissive. And now, assuming I've expressed myself on the underlying Apprendi questions, so I, but suppose Blakely does apply, would you -- is -what would be wrong with taking that approach?
MR. CLEMENT: Assuming I understand the approach you propose, there would be nothing wrong with taking that approach.
JUSTICE BREYER: All right, I have thought of one thing that might be wrong.
[Laughter.]JUSTICE BREYER: So I'll ask you about it, if you want.
[Laughter.]JUSTICE SCALIA: Could it be that "shall" [*46] does not mean "may"? Right?
[Laughter.]JUSTICE SCALIA: Oh, that's not it? "Shall" -
JUSTICE BREYER: All right, well, I -- you see nothing wrong with that. That makes the guidelines advisory, and there are a number of objections -- maybe not, maybe big, maybe small. One objection I was worried about is -- I'm giving you my thought process, you know, and I -- because I'm trying to get a -- your response -- is that if we did take that approach, you'd leave the appellate section in place. That means every time the judge didn't use the guideline, the appeals courts would have to review for reasonableness. Now that would be in place. We would discover judges all over the country having different views on that. Courts of appeals would have different views about was or what was not reasonable. We would be here to review those differences, and we would become the sentencing commission. I thought I had escaped.
[Laughter.]JUSTICE BREYER: Now, how, how serious an objection is that? Or do you recommend that, if [*47] you lose on this point, we take the approach of, in that way, making the guidelines advisory?
That was Booker and Justice Scalia was quite cocky as to "shall" does not mean "may." But somehow he found a new dictionary when it came time to write the opinion in Castle Rock v. Gonzales, and decided that he would interpret the Colorado statute at issue so that every shall was magically turned to a discretionary shall or a may. The statute reads in part (taken from Court's opinion):
“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.†Ibid.
In Castle Rock, Justice Scalia did that which he critics others for doing: making up the law to suit the desired result.
Posted by: Tom Lincoln at June 30, 2005 01:03 PM
The attorney for the Plaintiffs makes a compelling argument, but leaves one key question unanswered in my mind. If Colorado was so intent on imposing an unavoidable, mandatory duty on its police forces, why isn't this case filed in state court? It seems to me that the Legislature (presumably intentionally) left something out so that its municipalities would not be held to answer in damages for failing to perform their mandatory duties.
Posted by: Ron at June 30, 2005 05:26 PM
Due process does not end with a judge signing a writ. It necessarily continues with the executive enforcing the writ. The little girls were denied due process. Their mother and guardian should have been able to demand due process on their behalf -- to save their lives and not just to preserve her "property rights" in the restraining order. It seems to me that everyone is being disingenuous here. I will not talk about lynching in this comment (oops, I did) but let us suppose the President "exercises his discretion" not to issue the Supreme Court's mandate in this or any other case?
Posted by: nk at June 30, 2005 11:09 PM